Public Health Ethics

Advance Access published December 5, 2013



PUBLIC HEALTH ETHICS

2013

111

Courts, Expertise and Resource Allocation: Is

there a Judicial Legitimacy Problem?
Keith Syrett , Cardiff Law School, Cardiff University


Corresponding author: Keith Syrett, Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF10 3AX, Wales, UK. Email: SyrettK@cardiff.ac.uk

Introduction: Litigating Allocative

Choices
It is an uncomfortable truth for those working in health
services as well as for many commentators on health
policy that inevitably, albeit only occasionally, the judiciary becomes involved with healthcare decisionmaking. While such intervention is most evident in
respect of personal injury or other harm caused by the
negligence of doctors or medical staff in the course of
providing medical treatment, it is also increasingly commonplace in the context of allocative decision-making.
Such choices determine whether patients can access
healthcare for which they have a clinical need and
which, in some cases, may save or extend lives.
Consequently, these are high stake decisions for patients: indeed, tragic choices which entail distributions
[which] arouse emotions of compassion, outrage and
terror (Calabresi and Bobbitt, 1978: 18). The profundity of such emotions, coupled with the severity of the
consequences of the allocative decision, will drive many
who lose out to seek recourse through the courts.
Such litigation has increased in incidence in recent
decades as a consequence of a number of societal
and jurisprudential developments. These include the
emergence of more explicit strategies of rationing
healthcare resources, declining deference to medical
judgment, greater awareness both of treatment alternatives and of availability of legal services as a consequence of advanced information technology, a more
rights-conscious citizenry (underpinned both by

individualistic perspectives emergent from neoliberalism and by the entrenchment of legally enforceable
rights, including the right to health, in a number of
constitutions) and the rise of patient support organizations with the capacity and motivation to fund legal
challenges. Judges too, have proved more receptive
to petitioners. In some jurisdictionsparticularly in
South Americahealth rights litigation has expanded
exponentially (Yamin and Gloppen, 2011), but even
where the impact of litigation is more limitedas in
Englandjudges evince greater willingness than was
previously the case to carefully scrutinize allocative
decisions and to hold those making them to account
(Syrett, 2007).
Media commentators, academic analysts and even
judges themselves frequently express misgivings as to
judicial involvement in healthcare resource allocation.
For example, under the headline Meddling judges make
it worse, The Guardian newspaper (2006) commented
of the decision of the English Court of Appeal in the case
of Rogers (R (Rogers) v Swindon Primary Care Trust
[2006] EWCA Civ 392) that it is as inappropriate for
judges to meddle in medicine, as it would be for health
managers and medics to sit on the appeal court bench.
Hall (1997: 69) has similarly contended that we all
might view it in our best mutual interests to keep
these [resource allocation] decisions out of the courts,
arguing that the most obvious reason [for adopting this
view] is that the judicial system is ill-suited to decide
scientific questions. Furthermore, judges in various
jurisdictions have described courts as not fitted

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Courts are increasingly obliged to adjudicate upon challenges to allocative decisions in healthcare, but their
involvement continues to be regarded with unease, imperilling the legitimacy of the judicial role in this context.
A central reason for this is that judges are perceived to lack sufcient expertise to determine allocative questions.
This article critically appraises the claim of lack of judicial expertise through an examination of the various
components of a limit-setting decision. It is argued that the inexpertise argument is weak when compared with
other rationales for judicial restraint, such as the procedural unsuitability and lack of constitutional competence
of courts.

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The courts are ill-equipped to deliberate about

the issues of limit-setting, especially about the
more technical matters involved in assessing efficacy and safety. Court procedures, for example,
bring opposing experts to bear, and they leave the
final decision up to thosewhether judges or
jurieswith no expertise about technical matters
and little understanding of the organisational
context within which the issue has arisen
(Daniels and Sabin, 2008: 59).
As this statement indicates, a key rationale for regarding
the courts as deficient in respect of involvement in
allocative decision-making in healthcare is a concern
that they lack the requisite expertise to make judgments
upon the distribution of scarce resources. A similar
argument is advanced by Horowitz (1977: 31) in respect
of judicial engagement with social policy in general.
Juxtaposing the generalist skills of lawyers and
judges with the expertise of established bureaucracies,

interest groups and legislative committees, he argues

that judges are generalists means, above all, that they
lack information and may also lack the experience and
skill to interpret such information as they may receive.
But are reservations of this type valid? The goal of this
article is to critically evaluate the objection to intervention of courts in resource allocation which turns upon
a perceived lack of judicial expertise.

Expertise and the Judicial

Legitimacy Problem
It should be noted that what is problematized is not the
legitimacy of the court system per se. Of course, in many
jurisdictions concerns may be raised as to the mode of
appointment, representativeness, independence and
impartiality of judges. In certain extreme cases, corruption or bias may imperil attainment of legitimacy by
the judicial branch. However, in a democratic state
committed to upholding the rule of law, it is generally
accepted that courts are appropriate institutions to
resolve legal disputes that arise between private parties
or between individuals and the state.
Rather, it is the subject matter of the adjudication which
generates legitimacy concerns for courts that are called
upon to intervene in healthcare allocation decisions.
Importantly, legal doctrine captures the notion that
courts may possess or lack authority to determine certain
types of matter, through the concept of justiciability.
This has been described as entailing a big picture
constitutional appreciation of whether or not the
decision is an appropriate one for the courts (Harris,
2003: 633), that is, whether certain types of decisionmaking are, or are not . . . susceptible to judicial review
because their nature and subject matter are such as not to
be amenable to the judicial process (Council of
Civil Service Unions v Minister for the Civil Service
[1985] AC 374, 418). Put somewhat differently, a
non-justiciable issue is one in respect of which there
is no satisfactory legal yardstick by which the issue
can be resolved (Curtis v Minister of Defence [2002]
2 NZLR 744, [2]), with the consequence that the decision
is, in effect, immune from judicial questioning and/or
reversal.
By invoking the principle of non-justiciability, a court
thus signals that it considers itself to lack authority to
resolve (or even to consider) the particular subject
matter of the allocation of resources in healthcare.
A conclusion to this effect will likely be premised
upon two factors. First, the court may consider that it
lacks constitutional competence to adjudicate upon the

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(England: R v Cambridge Health Authority, ex parte B

[1995] EWCA Civ 49), unsuited (Canada: St. Joseph
Healthcare Association v Plummer Memorial Public
Hospital (1996) 24 OTC 73, [27])and not the proper
place (South Africa: Soobramoney v Minister of Health,
Kwa-Zulu Natal [1997] ZACC 17, [58]) to determine
the distribution of scarce healthcare resources.
The predominantly negative perception of the role of
the judiciary in this field of healthcare decision-making
has, however, been challenged. It has been argued that
courts can facilitate broad societal debate by exposing
allocative choices to wide public scrutiny, thus stimulating a process of social learning about the need for limitsetting as a prerequisite to addressing the legitimacy
problem in the allocation of scarce resources (Syrett,
2007). However, if they are to play such a role, courts
themselves must be accepted as legitimately involved in
the scrutiny of such choices. Yet why should those who
have lost out as the consequence of an allocative decision made by a healthcare provider accept the authority
of the judiciary when it upholds such a decision following challenge in court? Conversely, why should those
authorities which have sought to distribute scarce
resources in such a way that as many patients as possible
benefit from access to treatment accept that a court
has authority to order that their allocative decision be
revisited so that it takes account of the rights or interests
of the aggrieved individual?
Importantly, the view that courts possess no particular legitimacy to determine questions of the allocation of
scarce resources has been articulated by the proponents
of the thesis that limit-setting choices in healthcare give
rise to problems of legitimacy:

COURTS, EXPERTISE AND RESOURCE ALLOCATION

allocative choice which has been reached. This amounts

to a normative assessment of the proper role of institutions in a democracy (Jowell, 1999: 451), rooted in the
doctrine of the separation of powers, which prescribes
the proper locus of responsibility for particular types of
decision-making within a constitutional framework. It
is well articulated by the English Court of Appeal in the
case of Collier and by the Constitutional Court of South
Africa in the case of Soobramoney, respectively:

Second, the court may point to a lack of institutional

competence as the rationale for a refusal to intervene in
allocative decisions. Jowell (1999: 451) defines this as
involving a practical evaluation of the capacity of decision-making bodies to make various decisions. It has
two strands. First, allocative questions may not be
amenable to the judicial process because they are polycentric (Fuller, 1978: 400). Adversarial adjudicatory procedures are specifically ill-equipped to address decisions
that affect large numbers of interested parties and which
carry complex repercussions; for this reason, political
processes or non-judicial mechanisms of administrative
justicesuch as ombudsmenmay be more suitable.
Second, the court may decline to adjudicate on the
basis that it lacks the relevant expertise in the subject
matter. Legally trained judges may be said not to possess
the background skills, knowledge and experience to
decide upon matters that carry implications for the
fair distribution of (for example) scarce healthcare
resources.
These justifications for a highly restrained judicial
position on allocative questions are closely interwoven.
Horowitz (1977: 18) acknowledges that an inherent
overlap exists between the categories of constitutional
and institutional incompetence, noting that a court
wholly without capacity may forfeit its claim to legitimacy. A court wholly without legitimacy will soon suffer

from diminished capacity. The inter-relationship between the two bases for non-justiciability render the
distinction drawn by that author (see also King, 2012:
130) between legitimacy (constitutional competence)
and capacity (institutional competence) somewhat
redundant; put another way, the worthiness to be
recognised (Habermas, 1979: 178) of a political order
or governmental institution (such as a court) rests both
upon its normative acceptability and its institutional
suitability.
Judicial inexpertise is therefore merely one dimension
of a multifaceted legitimacy problem which confronts
courts in allocative cases. However, it is worthy of separate critical analysis both because of the centrality
accorded it by Daniels and Sabin (as previously noted)
and because there has been little systematic analysis of
the problems arising from the entrance of the courts into
areas that necessitate substantial technical knowledge,
whether in healthcare allocation in particular (Blank,
1988: 154) or social policy in general (Horowitz, 1977:
19). As will be argued below, the relative neglect of these
supposed problems in the literature may, in fact, be fully
warranted.
In order to explore the validity of the expertise objection to judicial legitimacy in this field, it is helpful to
unpack the allocative decision-making process so as to
better understand the nature of the various factors that
have a bearing upon it. This is perforce a somewhat
artificial exercise given that, in practice, the categories
outlined in the next sections of this article inevitably
overlap and impact upon each other. Nonetheless,
identification of the various components of a healthcare
allocation decision should assist in assessing its suitability for judicial scrutiny and intervention.

Judicial Expertise and Clinical

Considerations
Mashaw (1985: 27) views clinical decision-making as
the archetype of professional judgment, resting upon
the exercise of interpersonal and diagnostic intuition;
King (2012: 225) similarly states that doctors are
proficient in a body of knowledge that is in form and
content largely opaque to judges. This combination of
intuition and specialist knowledge provides, prima facie,
a strong argument for judicial deference to clinical
expertise. Judges simply cannot demonstrate the same
degree of intuition as doctors as they do not have the
level of experience in clinical situations which the latter
possess; similarly, they lack training and education in
clinical medicine. Additionally, clinical practice has a

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It is not for this court, or indeed any court,

to substitute its own judgment for the judgment
of those who are responsible for the allocation
of resources (R v Central Birmingham Health
Authority, ex parte Collier (1988); see Syrett,
2007: 165).
The provincial administration which is responsible for health services in KwaZulu-Natal has to
make decisions about the funding that should be
made available for healthcare and how funds
should be spent . . . A court will be slow to interfere with rational decisions taken in good faith by
the political organs and medical authorities
whose responsibility it is to deal with such
matters (Soobramoney v Minister of Health,
Kwa-Zulu Natal [1997] ZACC 17, [29]).

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particularistic character which makes it unsuited to

being held to account via the application of generalized
legal principles. Montgomery (2005: 32) writes:

However, there are a number of reasons to question the

argument that courts lack legitimacy as a consequence of
their inexpertise relating to clinical factors in allocative
decisions.
First, the characterization of clinical decision-making
as an essentially intuitive exercise of judgment in
response to the particularities of individual cases may
now be outdated as a consequence of the impact of
evidence-based medicine (EBM). As Howick (2011: 5)
explains, this paradigm relegates expert clinical judgment to third place in the hierarchy of bases for a medical decision, behind randomized controlled trials and
observational studies. Clinical intuition and experience
are not irrelevant but will not form the sole rationale for
decisions as there is no necessary connection between
the exercise of these qualities and the efficacy of treatment. Evidence, on the other hand, can establish such a
connection.
This carries important implications for the appropriateness of judicial intervention. The adjudicative function of the judge rests upon the review and evaluation of
evidence placed before the court. Consequently, EBM as
a form of decision-making sits much closer to judicial
reasoning than does traditional clinical judgment.
Furthermore, because the principles of EBM are frequently articulated in the form of published clinical
guidelines, specific documentation is often available
to a court which wishes to scrutinize a clinical choice.
This accordingly provides a more concrete basis upon
which a judge might challenge the decision that has been
taken than if the decision-maker had relied solely upon

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Physicians start from the demands of the patients condition and not from the demand for
generalizable knowledge, and their goal is just as
particular: to treat the patients illness, not to test
the therapy. They cannot begin by reasoning
from the general rule to the particular case because biological laws are too abstract and imprecise to be applied uniformly to every patient.
Instead they must reason from the particular to
the general and then (for confirmation) back
again. They start with the details of the present
illnessis the pain sharp or dull? what makes it
better?all the while fitting the answers into a
complex and general taxonomy of paradigm
cases of disease. Because understanding an individual instance of illness requires an inquiry into
its circumstances, diagnosis is an interpretive negotiation of the particular signs and symptoms
and their development over time.

intuition and experience which, necessarily, will be

particular to that individual. This is not to claim that
scrutiny of clinical decisions based upon evidence will be
straightforward for a judge; there is likely to remain a
deficit of knowledge arising from the technical character of some of the methodologies which are utilized in
EBM (see further below). However, a court can overcome some of these difficulties through procedural
means, for example, by calling upon expert witnesses
to contribute to its knowledge base or by permitting
third party intervention in order to provide information
and enhance its understanding.
Second, and relatedly, judges are conscious that an
excessively deferential attitude towards clinical arguments (Woolf, 2001) risks rendering decisions in
which such factors play a major part unaccountable
(at least as regards their accountability in the courtroom).
In consequence, they have developed legal tests that
permit them to exercise a degree of scrutiny over clinical
decision-making, while simultaneously ensuring that
physicians retain a significant amount of discretion
to exercise clinical judgment. This approach may be
illustrated by reference to two areas in which the law
interacts with clinical decision-making.
In the context of medical negligence, the English
courts previously adopted the stance that doctors
would not be considered negligent so long as they
acted in accordance with common professional practice
or opinion; moreover, if differences of opinion existed,
it would be sufficient if the doctor acted in accordance
with one body of opinion, irrespective of whether the
court preferred another approach (Bolam v Friern
Hospital Management Committee [1957] 1 WLR 582;
Maynard v West Midlands Regional Health Authority
[1984] 1 WLR 634; Woolf, 2001). However, latterly
this position has been subtly modified; the courts now
require demonstration that the body of opinion relied
upon has a logical basis (Bolitho v City and Hackney
Health Authority [1997] UKHL 46), raising the possibility (albeit slim) of intervention should such a basis
not be shown. Similar approaches have been taken
elsewhere, for example, in Australia and Canada
(Woolf, 2001). As argued above, the increasing prevalence of clinical guidelines affords further scope for a
less deferential judiciary to call into question clinical
decisions as amounting to a departure from accepted
best practice. Nonetheless, it should be noted that
ongoing concerns as to over-standardization of clinical
practice and consequent disregard for the particular
patients circumstances (frequently articulated in the
form of opposition to the notion of cookbook medicine (Holoweiko, 1989)) are likely to cause the courts to

COURTS, EXPERTISE AND RESOURCE ALLOCATION

assessed against the backdrop of the opportunity cost

which attached to its provision.
It is true that implicit forms of rationingdefined as
the unacknowledged limitation of care (Coast, 1997:
1118)tend to obfuscate the allocative nature of limitsetting choices behind clinical rationales, as doctors
present a resource-impacted decision as an exercise of
optimal or routine clinical judgment in the circumstances of a patients case. It is also plausible, as Aaron
and Schwartz (1984) have argued, that physicians are
sometimes unaware that this is happening, as they
internalize resource limits when making clinical
decisions. Nonetheless, even in such circumstances,
the decision cannot be classified as a purely clinical
one. This was recognized by the US Supreme Court in
Pegram v Herdrich (530 U.S. 211 (2000)), in which an
aggrieved patient challenged the decision of a physician
to delay treatment which, it was claimed, had been motivated by financial incentives offered to limit access to
care by the patients health maintenance organization.
The court conceptualized the role of the physician in
such a case as one which concerned both treatment
and eligibility for treatment, the former being clinical
and the latter managerial. On this basis, the patients
claim was not barred from proceeding as a malpractice
suit as a consequence of the Employee Retirement
Income Security Act, which the courts had previously
construed as precluding legal liability for denials of insurance coverage by health maintenance organizations
(Bloche and Jacobson, 2000).

The Managerial Dimension

Although Pegram v Herdrich demonstrates that decisions
on access to treatment interweave clinical and managerial considerations, the latter are inevitably more visible in
an environment in which scarce resources for healthcare
are explicitly allocated according to financial factors. As
Daniels and Sabin (2008) have observed, it is in such
circumstances that decisions to restrict or deny access,
or to prioritize certain treatments or conditions, are
especially prone to give rise to challenges to the moral
authority of the decision-maker, including by way of
litigation. How far is it appropriate for a court to decline
jurisdiction in such cases on the basis that it possesses
insufficient expertise to resolve decisions that are
premised upon financially-driven choices?
Two possible arguments may be advanced for such a
course of action. First, it is possible that judges lack generic managerial skills; second, that they lack specific organizational skills relating to health services management.

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be wary of regarding guidelines as definitive of the standard of care, as distinct from evidence which may inform
their estimation of what is reasonable in a given case
(NICE, 2004).
Similarly, in cases in which courts have been called
upon to determine the best interests of a patient in
respect of provision or withdrawal of medical treatment,
a formerly deferential standpointillustrated by the
statement that the courts do not instruct doctors how
they should perform their clinical and professional
duties (In re C (a Baby) [1996] 2 FCR 569)has been
refashioned by the judiciary. Thus, in R v Portsmouth
Hospitals NHS Trust ex parte Glass [1999] 3 FCR 145, the
Court of Appeal set out a series of principles which
govern decisions on best interests. It indicated that
the principle of non-interference by the courts in
areas of clinical judgment in the treatment of patients
should apply where such interference could be avoided
and that the refusal of the courts to dictate appropriate
treatment to a medical practitioner was subject to the
power which the courts always had to take decisions
in relation to best interests (in this instance, those of a
child).
As Huxtable (2013) observes in discussion of this
case, the principles which are germane to the making
of a decision upon medical treatment derive from a variety of domains. This leads to the third reason to query
the contention that the courts lack expertiseand thus
legitimacyto intervene in decisions on access to
healthcare because such decisions are clinical in character, which is that such a claim misrepresents the nature
of the choices which a physician must make. Clinical
judgments are, in reality, multifaceted: quite apart
from moral considerations, which are explored below,
they are necessarily shaped by the availability of resources; put simply, treatment options are constrained
or broadened according to funds. The facts of the leading English case of ex parte B serve to illustrate the point.
Here, an innovative form of treatment for acute myeloid
leukaemia (a third course of chemotherapy followed
by a second bone marrow transplant) was refused on
several bases, which were helpfully listed by the court of
first instance as: (i) the suffering which the treatment
would cause to the child; (ii) that the treatment could
not be justified on therapeutic grounds, but merely as a
form of experimentation; (iii) the fact that the treatment
had not been the subject of formal evaluation; and
(iv) the finite nature of the resources available to the
decision-maker. Arguably, clinical considerations were
the dominant feature of the decision reached in this
case, but the likelihood of success (and hence, whether
access to treatment was permitted) was inevitably

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As regards the first of these objections to judicial

intervention, King (2012: 234) notes that the judiciary
should be less discomfited by the need to address decisions which turn upon the exercise of managerial
expertisea key element of which, is the ability to identify and balance competing claims upon organizational
resources (March and Simon, 1993)than those in
which professional expertise (such as clinical judgment)
is predominant. This is simply a function of judicial
familiarity with this form of activity:

Hence, as it is axiomatic that prioritisation over the use

of resources lies at the heart of administrative decisionmaking (Palmer, 2000: 73) (especially in view of the
fact that many such decisions concern the distribution
of welfare benefits), it is inevitable that judges who
specialize in resolution of administrative disputes will
very often be required to engage with issues of resource
allocation. To express matters differently, if all such
cases were genuinely non-justiciable, there would be
little extant administrative law.
The second argument initially appears more persuasive in so far as matters relating to healthcare administration will necessarily arise less frequently before the
courts than managerial issues of a more general
nature. However, two counter-arguments to judicial restraint can be posited. First, as noted in the preceding
section, deficiencies in judicial understanding can be
ameliorated through procedural mechanisms, such as
the appointment of expert witnesses to advice on organizational questions. Second, if it is accepted that judges
do possess some broad understanding of managerial
issues in a generic sense, does the fact that this form
of litigation involves management of health services
alter the picture? Is there something special or distinct
about this field of activity as compared with other forms
of management?
It is certainly the case that specialized postgraduate
qualifications in health administration sit alongside
their better-known counterparts in business and

A need for Technical Expertise?

As previously noted, Daniels and Sabin identify a lack
of technical expertise as a particular deficiency of the
judiciary in respect of the allocation of healthcare
resources. This argument against judicial intervention
overlaps with that relating to the exercise of clinical
judgment, but is worthy of separate consideration in
light of recent policy developments in many health
systems worldwide.
The emergence of health technology assessment
(HTA) as a regulatory activity has provided a bridge
between scientific research and policy-making in healthcare (Battista, 1996). Deploying technical methodologies such as epidemiology and health economics,
agencies such as the UKs National Institute for Health
and Care Excellence (NICE) have been established to
evaluate the clinical and cost-effectiveness of medical
technologies (especially those which are new to the
marketplace). This evaluation informs decisions as to
which technologies should receive coverage within a
health system. In this manner, an agency of this type
plays at least an indirect role in healthcare resource
allocation at the macro level; indeed, NICE has sometimes been depicted as the UK governments rationing
body (The Guardian, 2013; Daily Mail, 2013).
Decision-making by HTA agencies has been subject
to judicial scrutiny in various jurisdictions (Syrett,
2011). The focus of such review has tended to be upon
procedural aspects of decision-makingsuch as provision of adequate explanation for the conclusions that
have been reached and opportunities to participate in
the decision-making process (in particular, rebuttal of
arguments and evidence advanced by the agency).
Courts have been reluctant to question the substance

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The judicial posture is somewhat deferential but

not highly so, because courts and tribunals
also gain a sense of administrative workability
through their exposure to administration in
their day-to-day work. Managerial expertise . . . is
nowhere near as foreign to judges as professional
expertise. The reasoning and intuitive factors
are less opaque, particularly [to] those who
work day to day(sic) on administrative law
cases. It also means that the judges can understand enough of the basics of the administrative
system to carry on a sophisticated conversation
with the managerial experts.

public administration; but it has also been claimed

that what is expected of a healthcare manager does not
differ greatly from that which is expected of managers
elsewhere, including in industry (Goldsmith, 2011).
Arguably, the crucial distinction between management
of healthcare and other managerial activities in the
public sector resides not in the bureaucratic structures
or decisional processes which apply, but in the subject
matter, the fact that healthcare may be vested with a
special moral importance which other areas of public
administration do not possess. If this is so, the argument
that judicial intervention is illegitimate rests on the
moralpolitical content of the subject matterto be
discussed belowrather than the presence of managerial components to the decision.

COURTS, EXPERTISE AND RESOURCE ALLOCATION

institutional reforms, such as routine use of courtappointed experts or the establishment of a judicial
research service. While it might be objected that such
developments (especially the second) are unlikely, especially in the current era of financial stringency, the point
remains that the judicial process is potentially adaptable
in such a way as to mitigate deficits of expertise. That is,
courts are not inherently incompetent (through lack of
expertise) to address such questions; merely unsuited on
the basis of present institutional arrangements.
It is also important to note that, just as clinical considerations are inextricably intertwined with managerial
factors, so technical aspects do not stand alone in HTA
allocative decision-making. This can be illustrated by
reference to the experience of NICE since its establishment in 1999. The Institutes initial, somewhat technocratic approach to fulfilment of its functions proved
deficient (Syrett, 2003). NICE acknowledged that its decisions possessed both scientific and social value dimensions and that the legitimacy which it enjoyed
with respect to the former, as a consequence of the technical expertise of those involved in the process of
appraising technologies, did not confer legitimacy to
resolve the questions of distributive justice to which
its work gave rise; it altered its decision-making structures accordingly (Rawlins and Culyer, 2004; NICE,
2008). Similarly, a judicial refusal to engage in allocative
questions on the sole basis that these are technical
would represent a misunderstanding of the nature of
such decisions. They are not purely technical; technical
factors are interwoven with moralpolitical considerations. Abdication of a judicial role based on lack of
expertise is therefore only appropriate if the court
lacks expertise in both these respects.

Moral and political factors

It is self-evident that resource allocation in healthcare
raises contentious questions of distributive justice.
Ultimately, it is the profundity of the moral convictions
which are held, the absence of consensus on a socially
acceptable basis for distribution and the incommensurability of the positions adopted by different parties,
which give rise to the legitimacy problem in the
allocation of scarce healthcare resources. Any instance
of litigation which addresses allocative questions thus
necessarily engages with moral considerations. Are the
courts sufficiently expert in issues of morality that they
are competent to address such issues?
The literature on the relationship between law and
morals is voluminous and complex and cannot possibly

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of HTA decisions, such as recommendations that a

particular treatment should receive public funding. In
part, this reflects the limited scope of judicial review
of administrative action; courts are not normally empowered to substitute their view of the correct decision
for that of the original decision-maker, but only to
ensure that the agency has the lawful authority to take
the decision in question and that it complies with
principles of procedural fairness. However, it is also
indicative of judicial discomfiture with some of the
more technical dimensions of HTA decision-making.
For example, in R (Servier Laboratories Ltd.) v NICE
(2009) EWHC 281 (Admin), [6], the judge noted that
it is important to stress at the outset that NICE is the
specialist, expert body, charged with making appraisals
and decisions of this type. The court is not. I have
neither the right, still less the expertise, to review the
decisions as to their substance. Similar reticence has
been expressed by the judiciary in New Zealand. In
Walsh v Pharmaceutical Management Agency Limited
(2008) NZHC 441 (see especially [154]), the High
Court evoked the deferential Bolam standard in refusing
to choose between competing bodies of evidence and
opinion as to the length of the period of treatment for
which it was appropriate to provide public funding for
the breast cancer drug Herceptin.
Whether such judicial deference to agency decisionmaking on the grounds of the specialist expertise
required by HTA is well-founded is, however, questionable. As King (2012: 240) notes, courts have frequently
been prepared to scrutinize, and sometimes to contradict, evidence of a scientific or social scientific nature
upon which policy decisionsincluding those relating
to the allocation of healthcare resourcesare based (see,
e.g. Minister of Health v Treatment Action Campaign
(No. 2) (2002) 5 SA 721), albeit that this has, sometimes
produced controversial outcomes (see Chaoulli v
Quebec (Attorney General) [2005] 1 SCR 791).
Elsewhere, the use of scientific evidence to establish
propositions of a highly technical nature is somewhat
familiar in the fields of criminal, tort and family law
(King 2012: 241).
There seems no particular reason why epidemiological and health economic evidence should be less susceptible to admission and consideration in court, save
perhaps for the relative newness (and hence, unfamiliarity) of these disciplines. Indeed, the judge in the
Servier case engaged in quite complex analysis of the
modelling carried out as part of the evaluation of
the technology by NICE, notwithstanding his strictures
relating to lack of expertise. Once again, any continuing
deficiencies in this regard could be alleviated by

8 

SYRETT

the label which the judge accorded it, the question which
the court was asked to resolve in Re A remained moral in
character and thus required engagement with principles
and arguments of this type. Much the same can be said
of the context under discussion here. Allocative choices
inevitably throw up conflicting ethical bases for the fair
distribution of scarce resources (Cookson and Dolan,
2000) and judges who are called upon to determine
such cases will inevitably develop a degree of familiarity
with the principles of justice in healthcare rationing
even though they may seek to preserve the line that
objective legal principles and precedent are the determining factors.
Another factor is, however, at play in litigation of this
type. Incontrovertibly, one of the principles of distributive justice which is engaged in such cases is that which
specifies that resources should be distributed in such
a way that aggregate health gain is maximized: this
argument will usually underpin the decision by the
care provider, health manager, HTA agency or government official to restrict or deny an individuals access to
treatment. This may be seen as a species of utilitarianism
(Roberts and Reich, 2002). The significance of this lies
in the fact that it has been argued that it is not for
the courts to engage in matters involving a utilitarian
calculus of social good (Jowell, 1999: 454).
A leading exponent (now retired) of this view
among the senior English judiciary has been Lord
Hoffmann. In a case in which the system of land use
planning was challenged on the basis that it lacked
independence and impartiality, he made the following
observations:
Respect for human rights requires that certain
basic rights of individuals should not be capable
in any circumstances of being overridden by the
majority, even if they think that the public interest so requires. Other rights should be capable
of being overridden only in very restricted
circumstances. These are rights which belong to
individuals simply by virtue of their humanity,
independently of any utilitarian calculation.
The protection of these basic rights from majority
decision requires that independent and impartial
tribunals should have the power to decide whether
legislation infringes them and either (as in the
United States) to declare such legislation invalid
or (as in the United Kingdom) to declare that it is
incompatible with the governing human rights
instrument. But outside these basic rights, there
are many decisions which have to be made every
day (for example, about the allocation of resources)
in which the only fair method of decision is by
some person or body accountable to the electorate.
(R (Alconbury Developments Ltd) v Secretary

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be addressed in an article of this length. Suffice to say

that an importantalbeit, in the Anglo-Saxon legal
world, not dominantstrand of jurisprudence emphasizes the inner morality of law (Fuller, 1965), while
arguably the most influential legal theorist of recent
years posited a one system picture which treated
law as a part of political morality (Dworkin, 2011:
405). The claim therefore that moral judgments
impact upon legal principle is far from unprecedented,
and even positivist legal scholars who reject any necessary connection between law and morals, accept that the
content of morality has influenced the content of law
(Hart, 1994).
Academic legal theory is, of course, a different beast
from practical judicial reasoning. Judges, many of
whom have been schooled in the positivist tradition,
are frequently reluctant to acknowledge that resolution
of a case entails the application of fuzzy, subjective ethical values as distinct from hard-edged legal principle.
For example, Justice Scalia of the Supreme Court of the
USA has remarked that surely it is obvious that nothing
I learnt in my law courses at Harvard Law School, none
of the experience I acquired practising law, qualifies me
to decide whether there ought to beand hence isa
fundamental right to abortion or to assisted suicide
(Rozenberg, 2007).
A stark instance of such a claim in the healthcare field
is afforded by the English case of Re A (children) (conjoined twins: surgical separation) [2001] Fam. 147, in
which the Court of Appeal was asked to rule upon the
lawfulness of an operation to separate conjoined twins,
which would allow one to survive and, potentially, to
live a relatively normal life, but would result in the
certain death of the other. In addressing this question,
Ward LJ asserted that This court is a court of law, not of
morals, and our task has been to find, and our duty is
then to apply, the relevant principles of law to the situation before us (p.155). This proposition has been the
subject of criticism. Clucas and ODonnell (2002), who
regard it as strange and odd, surmise that the judges
attempt to deny the moral quality of the decision which
the court was asked to make stemmed from a desire to
avoid (or at least to minimize) the controversy that
would ensue when those with differing moral perspectives expressed criticism of the judgment. Another way
of reading this would be to adopt the discourse of legitimacy, premised upon the possession and exercise of
expertise. Judges are, of course, experts in comprehending and applying legal principles, hence articulation of
the question as legal in character represents an attempt
to foreclose any legitimacy problem which might ensue
if morality was seen to be central. Yet, notwithstanding

COURTS, EXPERTISE AND RESOURCE ALLOCATION

of state for the Environment, Transport and

the Regions [2001] UKHL 23, [70] (emphasis
added)).
The judges remarks here suggest that he does not consider allocative questions to be proper subjects for judicial scrutiny because they necessarily involve utilitarian
calculations of the public good. Writing extra-judicially,
he has been still more explicit on the point:

This passage is illuminating and repays close analysis. It

is clear that Hoffmann considers utilitarian calculations
to be beyond the remit of the judiciary. In so far as
priority setting decisions in healthcare concern such
principles (as surely, they must), then courts are not
competent to address them. But it is noteworthy that
the rationale which Hoffmann offers for this conclusion
does not turn upon a lack of judicial expertise in relation
to consideration of ethical claims of a utilitarian character. Rather, the obstacles to judicial involvement are
seen as being the polycentric nature of resource allocation decisions, to which the court is institutionally unsuited (a court . . . has no way of being able to decide;
because it can only view the matter in isolation, it has
no way of knowing) and the argument from lack of
constitutional competence (the only people who can
make such decisions are the democratically elected
bodies who are in charge of the budget as a whole).
Indeed, it is significant that the passage is taken from
an article entitled Separation of Powers, which
Hoffmann considers to require that some areas of life
are excluded from judicial decision (2002: 141). Jowell
(1999: 454) also assigns the judicial reticence to engage
with utilitarian reasoning to the constitutional (in)competence category, rather than regarding it as a manifestation of lack of expertise.

The fact that allocative decisions necessarily engage

utilitarian principles may therefore constitute a compelling argument against judicial intervention in such
cases. But it is not clear that this argument properly
rests upon lack of judicial familiarity with, or understanding of, the moral arguments (including, but not
restricted to, those based upon utilitarianism) which
are necessarily at play in this field. Considerations of
the unsuitability of the adversarial adjudicative process
and lack of constitutional competence appear more
germane than judicial inexpertise. That is, questions of
who gets what, when and how (Lasswell, 1936) rest
most properly within the domain of the political
branches of government which can (at least in principle)
deliberate upon polycentric matters and which (again,
in principle) are democratically accountable for their
decisions.
From a slightly different perspective, in a situation
where a plurality of substantive ethical positions of
equal validity makes distribution morally complexas
is generally accepted to be the case in the context of resource allocation in healthcare (Cookson and Dolan,
2000; but compare Ashcroft, 2008)we might conclude
that the best that can be achieved is a non-ideal form of
distributive justice: that is, one which cannot properly
be described as unjust or, as Powers and Faden (2006: 31)
put it, one aimed at making the most of a bad situation.
In such circumstances, there may be no moral grounds to
prefer the distributive choices made by legislatures or
accountable individuals/agencies operating within
the executive branch to those made by judges. Each is
equally capable of reaching a least worst or just enough
moral position. But there is a democratic reason to prefer
the choices made by political rather than judicial
actors and this may rightly induce a somewhat deferential approach upon the part of judges which is captured
in the legal doctrine of non-justiciability.

Conclusion
The growing frequency of judicial engagement with
allocative choices in healthcare has drawn attention to
the suitability of courts for making decisions in this
field. The argument presented here has sought to demonstrate, by way of a deconstruction of the components
of limit-setting choices, that the various dimensions
of such decisions are not as remote from judicial understanding or experience as has often been supposed.
This suggests that the objection to the involvement
of courts which rests upon a lack of judicial expertise
is misplaced.

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A court deciding a case which will affect one

form of public expenditurefor example,
impose a burden on education authoritieshas
no way of being able to decide whether such expenditure should or should not have a prior claim
over other forms of expenditure. It may consider
that, viewed in isolation, it is fair and reasonable
that children in schools should receive certain
benefits or financial compensation for not
having received other benefits. But because it
can only view the matter in isolation, it has
no way of knowing whether this means that
other people dependent upon social security,
police protection and so on will have to make
sacrifices because there is less money for them.
The only people who can make such decisions
are the democratically elected bodies who are
in charge of the budget as a whole (Hoffmann,
2002: 141).

10

SYRETT

Conicts of interest
None declared.

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