#1722 - King The Justiciability Of Resource Allocation - Medical Law

King – the justiciability of resource allocation

Discretionary Allocative Decision Making

• Discretionary allocative decision-making’ may be defined as occurring where an administrative decision-maker decides to allocate public resources

  • under the authority of a discretionary power accorded under the law (statute, delegated legislation or prerogative powers).

  • Such powers may be contrasted with duties.

    • An ‘allocative decision’, for present purposes, can be defined as one in which the decision-maker decides to allocate public resources

      • and the cost of the allocation is a consideration

        • relevant to the correctness, reasonableness, or propriety of the decision

• The non-justiciability doctrine

  • The allocation of resources between competing claims raises non-justiciable issues

    • first, the allocation must be discretionary;

    • secondly, the decision reviewed must implicitly or explicitly take account of the cost of the allocation;

    • and third, the head of legal challenge must be Wednesbury or rationality review.

      • It is the rule that such decisions are non-justiciable that shall be named the ‘non-justiciability doctrine

  • It is not only decisions regarding national economic policy that are encompassed within the idea of discretionary allocative decision-making.

    • Indeed, courts are concerned not to review allocative decision-making of relatively discrete forms on grounds of Wednesbury reasonableness.

    • Per Bingham MR in R v Cambridge Health

      • “Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which a court can make”

  • However, the breadth of the statement in Ex p B is liable to a wider interpretation than the rule it lays down

    • The particular legal claim that gave rise to Lord Bingham's statement was an attempt to force a health authority to explain the budgeting decisions that made the refusal of funding a reasonable decision.

      • That type of inquiry, the Court of Appeal found, would ultimately force courts to second-guess the wisdom of budgeting decisions.

    • That is quite a different issue from whether the decision-making of health or other public authorities can be subject to legal oversight on rationality grounds,

      • even when such oversight affects decisions that influence how resources are allocated within the authority.

      • The key aspect of all the decisions following the Ex p B line of authority is that cost was a relevant and explicit concern of the authority's decision. In this respect, then, they are all allocative decisions as defined above.

  • In contrast, in Rogers v Swindon

    • The Court found that once the health authority found that available resources were irrelevant, as it had in that case,

      • then there could be no rational reason to refuse funding due to personal characteristics,

      • and in fact there was no rational reason to refuse for clinical characteristics

        • The Court distinguished Ex p B because the PCT explicitly disavowed the relevance of cost.

          • Yet the Court went out of its way to state that had financial constraints been a relevant aspect of the decision, it would be ‘very difficult, if not impossible, to say that such a policy was arbitrary or irrational

        • Indeed, the judgment is viewed by some commentators as an admonishment to make findings as to cost an explicit part of the decision-making process.

          • It thus reaffirmed the non-justiciability doctrine, but in a way that recognises its narrow application

• The meaning of discretionary

  • The distinction between discretionary allocative decision-making and allocative impact depends to some extent on whether the decisions challenged were taken pursuant to a duty or a discretionary power

    • However, there are two meanings to discretion

      • One is that ‘discretion’ exists when identified through ordinary rules of statutory interpretation (the one endorsed and illustrated further in this section).

      • Another is that it exists when judges declare that, in their opinion and for reasons which may or may not be stated, the matter is one which ought to be decided by the primary decision-maker and not judges

  • Accordingly, identifying whether a discretionary power exists typically requires an examination of the statute or statutory instrument providing for the decision-maker's jurisdiction

    • In this context, one can usefully classify the cases in which the question arises of whether a discretionary power exists into three relevant strands.

      • The first concerns the use of the term ‘may’ instead of ‘shall’,

      • while the second addresses the use of subjective language conferring discretion.

        • Both of these, though nuanced, are settled examples of statutory language conferring discretionary powers.

      • The third strand, however, addresses the more difficult situation of where a statutory term is vague

        • and the court must decide who is best placed to provide a definition, and where on occasion it uses the term ‘discretion’ in making its decision

• The third strand

  • The third strand of cases involves situations where the authorities will claim that a discretion exists even where the word ‘may’ or other subjective language is not at issue.

    • It often arises where there is a statute with an ambiguous term whose definition raises the question of whether the court or the primary decision-maker is in a better position to define the term

      • This is a question of deference to judgement rather than following statutory intepretation

      • Two good reasons to keep the concepts distinct:

        • The first reason is that it avoids conceptual confusion and the undesirable infiltration of political values.

          • Courts defer for different reasons in review of discretion than in review of judgment.

            • In the former, the reason is that Parliament has effectively told them to defer.

            • In the latter, judges defer because, in the court's own opinion, the meaning given by the primary decision-maker is entitled to special weight for reasons of the decision-maker's competency.

          • A blanket rule might be suitable for the former, but not likely for the latter, as competency is likely to vary depending on the context and decision-maker.

        • The second reason for keeping the concepts of judgment and discretion separate relates to concerns about the rule of law and the institutional competency of the judiciary in protecting it.

          • Courts have a long history and established set of principles for the interpretation of statutes.

          • In cases of judgment, the concept is meant to bear meaning independently of the decision-maker's interpretation and the courts have more guidance in determining the correctness of the characterisation of the term

          • This is particularly the case where the statute itself provides criteria to assist in defining the term.

            • Furthermore, law is shot through with ambiguity.

            • A rule that vague terms are to be regarded as creating unreviewable discretion could have dire consequences,

              • and limit the extent to which Parliament could legislate legally enforceable statutory duties

Allocative Impact

• Decisions having allocative impact are those in which the effect of the decision is to impose a financial burden upon public resources.

  • It is appropriate to refer to such an effect as allocative because, assuming there is no increase in revenue, it will affect the overall distribution of financial resources.

    • Allocative impact is a collateral effect of a judgment, not a factor ordinarily recognised in determining whether the elements of a cause of action or error of law have occurred.

• Where allocative impact is considered irrelevant

  • Allocative impact is considered irrelevant where the is statutory interpretation not involving duties

    • The consequences of enforcing a law, it is thought, are for the legislature to resolve....