Medical rights to treatment
negligence lawyers
handle the most
difficult claims"
Richard Follis, Partner
Under the National Health Service Act 2006, the Secretary of State for Health must promote a comprehensive health service to secure improvement in 'the physical and mental health of the people of England, and ... in the prevention, diagnosis and treatment of illness'.
However, there is a tension between resources and demand. In practical terms this results in waiting lists, the rationing of some treatments and restrictions on which drugs can be prescribed. The courts have long upheld the right of the NHS to decide and prioritise where and how it spends its budget.
There are though some limits to this approach which can help an individual patient. If waiting lists are too long then European law may require the NHS to pay for treatment abroad. If decisions about which treatments or drugs are to be provided are irrational or flawed they may be judicially reviewed. There has been recent debate about allowing patients to pay a top up charge so they can have drugs which otherwise would not be available.
Outside NHS, private treatment may be available, but only for those with the means or perhaps insurance to pay for it.
Human rights law has yet to make a major impact in the area of medical rights to treatment. The law continues to recognise that NHS funds are finite. If a particular treatment is not normally available, the patient has to apply for NHS exceptional funding. This can itself be a complex and daunting process, with each PCT having its own process to follow. If successful, exceptional funding can make a significant difference.
So whilst a challenge to a resource allocation / rationing decision is possible few such cases succeed. Careful preparation and assessment of case prospects are essential. We recommend talking to one of our experts at an early stage to see whether the law will help in your case.
Right to a particular treatment
Even when funding is available, doctors are not bound to provide a particular treatment for an individual patient.
This becomes all the more difficult towards the end of life. Once again, Human rights law has not impacted greatly on established principles.
When considering medical rights to treatment, a doctor is not obliged to give treatment which is futile, and so it is important to communicate to the doctor what is important for this particular patient - not only medically but in a wider sense. What are the social, emotional and welfare priorities and concerns of this particular patient - including perhaps their moral or religious views?
It is also important to understand what definition of futility the doctor is relying on as well as to discover how certain the prognosis is both with and without treatment. The obtaining of a second medical opinion may help both the treating doctor and patient / family to identify possible alternative approaches as well as any differences of opinion as to the probable effect of treatment compared to non-treatment.
Should the case be referred to the court, independent medical evidence will help the judge assess where the appropriate balance lies.
Navigating a way through these legal, ethical and medical challenges, especially at what is already a difficult time, can be extremely challenging.
Our specialist medical lawyers can help clarify the issues, make representations to the doctors and trusts involved, help source independent medical opinion and, if necessary, refer the matter to the court for decision.
