Who will be patients' advocate if doctors assume the rationing role?BMJ 1996; 312 doi: https://doi.org/10.1136/bmj.312.7040.1230 (Published 11 May 1996) Cite this as: BMJ 1996;312:1230
EDITOR,—The case of child B has important implications for patients seeking expensive potentially lifesaving treatment within the current economic climate.1 The Court of Appeal's decision was disappointing but unsurprising. The master of the rolls made it clear that the courts are not the forum for making decisions on the allocation of resources in health care (no doubt he could envisage the floodgates opening to scores of disappointed patients). What is surprising, however, is that he assumed that the decision making process is determined by a utilitarian framework of justice.2 Clinicians usually adopt an egalitarian framework of justice such that resources are allocated according to need. The definition of need is complex, and attempts have been made to define need according to capacity to benefit, although people with a poor prognosis are still in need.3 If cure is possible, albeit unlikely, at what level of probability does utility become futility?4
This case diverges from other cases centred on minors and medical treatment, for in other cases the best interests of the child have been evaluated. It is clear that the physicians looking after child B also used the “best interests” test and concluded that the burdens of treatment outweighed the benefits to her. They did not consider the opportunity cost to others. But in judicial review the role of the court is to decide whether the health authority's decision is lawful and not the merits or demerits of the decision itself. In the case of child B the treatment was considered to be experimental and of uncertain outcome. Furthermore, medical opinion was divided. One can only speculate on what would be the court's decision in a case in which the doctors and parents agreed that lifesaving standard treatment was in a child's best interests but a health authority refused to pay on the grounds that the probability of benefit was too low and the costs too high. Such a scenario is unlikely but not impossible. The physicians with a duty of care would be placed in a very difficult situation. Non-treatment would conflict with their professional ethics, and serious criticism—even allegations of criminal negligence—might follow.
The Court of Appeal's decision does not augur well for patients in the new order. Who will be the patient's advocate if doctors, including fundholding general practitioners, assume the rationing role and make their decisions (as the courts seem to do) by reference to a distributive utilitarian framework?5