Tragic choice and the role of administrative law

Cameron Stewart https://www.findarticles.com/

Chris Ham's article on tragic choices in health care highlights the increasing need for transparency and fairness in medical decision making.[1] Although Ham argued on ethical grounds for greater accountability in resource allocation, there is a growing body of law that is beginning to regulate this area. Administrative law is a branch of public law that deals with judicial review of decisions made by government bodies. Traditionally, this area of law has had little impact on medical decision making. However, as the healthcare system becomes increasingly bureaucratised, greater levels of dissatisfaction may force some patients to seek redress for their complaints through the avenue of administrative law. The case of Child B was an example of such a complaint.[1] Even though the Child B case was a failure, these types of claims are beginning to increase in frequency. The United Kingdom leads the way in this area, and it is the only country in the Commonwealth where administrative law is having a major impact on medical decision making. The basic principles of administrative law are, however, shared by all common law jurisdictions, and other countries (particularly Australia and New Zealand) are now seeing similar claims arise.[2 3] There is a pressing need for medical decision makers to familiarise themselves with the basic principles of administrative law.

Methods

This article is the result of legal research into administrative law. Judgments were retrieved by using traditional techniques for legal research and electronic retrieval of relevant documents from the casetrack system (www.casetrack.com).

Administrative law

Administrative law is the body of rules under which the courts examine the legality of bureaucratic decision making. When courts are asked to review a decision made by government bodies they are limited to reviewing the legality of the process of decision making and are not allowed to examine the actual merits of the case. To do this the courts examine the powers of the decision maker and the requirements of statute and regulation to see if the decision maker acted unfairly or outside his or her bounds. In that sense administrative law is concerned with the decision making process rather than the outcome of that process. Courts are also forbidden to examine the worthiness of the policies behind particular decisions unless a policy is itself beyond power or in contravention of law.

As a result of the strict concentration on legality rather than merits, there are many administrative decisions that cannot be reviewed. Decisions that cannot be reviewed by the courts are said to be " non-justiciable."

Administrative law and the existing medicolegal framework

Traditionally, medical law is focused on providing remedies for tortious conduct. Medical law has not directly interfered with medical decision making, apart from judging whether a decision fell below the proper standard of care. There has been a judicial reluctance to get involved, especially when a decision is made purely for clinical reasons. For example, one of the reasons that the appeal against the decision not to treat Child B ultimately failed was because the judges refused to express opinions on the effectiveness of medical treatments for her condition. In another case, which concerned the withholding of treatment from a minor, the court found that no doctor could be required to treat a child against his or her professional opinion.[4] To do so would wrongfully interfere with the professional judgment of the clinician.

The courts are similarly reluctant to become involved in decisions that are solely related to finance. Judges are unable to resolve resource dilemmas and have no constitutional right to consider them. The case of Child B largely failed because of this reason. In two other cases concerning the refusal of health authorities to perform heart operations on newborn infants, [5] the courts refused to intervene because the decisions were made for resource reasons. The courts had no power to examine whether health authorities had resources available to treat these patients and were not equipped to properly deal with such evidence even if it were available.

Despite these judicial reservations, administrative law is having an increasingly important impact on medical decision making. There are two reasons for this: firstly, the process of medical decision making is now indistinguishable from other types of bureaucratic administration. Treatments are dispensed according to clinical guidelines and policies. Decision making is horizontally organised, from macrodecisions made by government departments through to mesoallocation by health authorities and ending with bedside decision making made collectively by groups of doctors. Secondly, the question of whether particular patients should be treated is no longer solely about clinical factors specific to individual patients. The scarcity of resources means that treatment decisions concern questions of allocative efficiency, which include characteristics more properly described as " social." For example, medical decision makers might take into account the sexual preference of a patient to determine whether infertility treatment should be provided. In such cases administrative law is able to examine the considerations of the decision maker to see if they have strayed into unlawful areas. Both factors mean that any disputes about treatment decisions are perfectly suited to administrative law and its focus on the legality of the decision making process.

Grounds on which courts review a decision

The courts will review decisions on various grounds (box). In addition to these grounds, it seems that the Human Rights Act 1998 will create further opportunities for review. The Human Rights Act has the purpose of incorporating the European Convention of Human Rights into English law. At present the convention rights have not yet been fully implemented but must be considered by judges in their decisions. One immediate effect of the act has been to expand the grounds of review by allowing claimants to argue that derisions should be overturned because they infringe convention rights.

If any of the above grounds are proved, the courts have the power to quash the decision and to order it to be remade. Several types of medical decisions are subject to these grounds of review.

Decisions that discriminate against certain types of patients

A decision will be struck down by the court if it unreasonably discriminates against a patient for reasons unrelated to a clinical assessment of the patient's condition. For example, in one case a woman appealed her rejection by an in vitro fertilisation unit, which had decided not to treat her because of her criminal record. The decision of the unit was eventually upheld but not before the court stated that the unit did not have the power to formulate a policy on discriminatory grounds.[6] However, if the discriminating factor is related to clinical success it will not impact on the lawfulness of the decision. In a similar case, where a woman was refused in vitro fertilisation treatment because of her age, the court found that discrimination on the grounds of age was reasonable given the effect of age on the treatment's success.[7]

Blanket policies to not treat particular conditions

Different considerations come in to play when the policy is not itself discriminatory but is drafted in a blanket fashion to prevent types of treatment altogether. Such a policy might conflict with general statutory duties to provide medical services or be found to be unreasonable or procedurally unfair. Recently, a decision by a health authority not to provide funds for treating transsexualism was found to be illegal for this reason.[8] The authority had decided against providing funds for gender reassignment because it was " medically ineffective." The court found that the authority had not considered transsexualism as an illness when it made its decision and therefore the decision was unreasonable and illegal.

A policy not to provide interferon beta treatment for patients with multiple sclerosis was also found to be unreasonable.[9] The authority had created a policy whereby the treatment would be available only as part of a drugs trial. The authority knew that there was no drugs trial and that there were no plans to begin one. As such its policy was effectively a blanket ban on the treatment. This was in contravention of a departmental directive and was thus found to be irrational.

Broken promises to provide particular services

Normally, when promises are made regarding treatment or the creation of new services, a decision to break such promises will be non-justiciable as it will have been made in the context of a policy change or because of tight resources. There are many examples of this, such as the promises to build or maintain an orthopaedic services unit, [10] an obstetrics unit, [11] and a vitamin B-12 unit.[12] All these cases failed to get around the test of justiciability. They were all policy decisions based on tight resources.

However, a recent case had suggested that there may be a part for the court to play even in these types of decisions. A decision to close a home for severely disabled people was overturned on the grounds that a promise had been made to the residents that they could reside there for life.[13] The decision makers had not properly accounted for the promise as they did not treat it as a binding obligation. The Court of Appeal found that the patients had a legitimate expectation of a substantive benefit and that the decision to close was so unfair that it was an abuse of power.

Additionally, the European Convention of Human Rights was used by the patients to widen the grounds of judicial intervention. The court found that the decision offended the patients' right to respect for their home, which is protected under section 8 of the convention. The court said that the more a decision impacted on convention rights, the greater would be the judicial scrutiny.

This case is extremely problematic and it certainly crosses the divide between the legality and the merits of a decision. The court's decision to review the substantive merits of the case rather than the procedural dimension means that the authority of the case is questionable. If the decision survives any appeal, it will widen the scope for review by allowing judges to weigh up the substantive issues considered by the decision maker.

Conclusion

The trend towards greater bureacratisation and the need to find ways of discriminating between patients means that administrative law is now of central importance to medical decision makers. The courts have drawn a line around decisions that are solely motivated by financial concerns and those that are based solely on medical opinions. But where the decision making process has been affected by unfair or unreasonable behaviour the courts are willing to step in and require the decision to be remade. Ham has set out the need to " structure the debate to enable different points of view to be articulated; to promote transparency and consistency in decision making; and to build trust, confidence, and legitimacy in the process." Ham's ethical argument is also backed up by the requirements of the legal system. The future impact of administrative law will hopefully be to realise the promise of transparency, improve the process of decision making, and to further the public's understanding of tragic choices and why they need to be made. Of course the additional challenge will be to carefully control the judiciary's own power from widening so much that it prevents the proper exercise of discretion and policy creation.