5 - Rationing and the Courts: Theoretical Perspectives

Summary

What's law got to do with it?

The title of a report produced by the Canadian Bar Association neatly captures the attitude of scepticism, prevailing among many who work in this field, towards involvement of the legal process in questions of the rationing of scarce healthcare resources. Law, and in particular litigation, is seen as inimical to the task of establishment of priorities for healthcare expenditure. The consequence is that there has been a failure to consider the potential of legal mechanisms and, specifically, the application of legal principles in an adjudicative setting, to assist in the resolution of the ‘legitimacy problem’ delineated in the previous chapter. This chapter will canvass the theoretical and jurisprudential arguments for and against an expanded role for law in this context, focussing mainly, but not exclusively, upon the part played by the courts. The three subsequent chapters will consider the degree to which existing case law from England, Canada and South Africa suggests that potential exists to develop an approach to the judicial function in rationing cases along the lines of that which is outlined here.

Mistrust of the legal process

Perhaps the most pointed expression of antipathy towards a perceived intrusion by law into this field of public policy is that of Hunter, who argues baldly that ‘there is no place for the courts in rationing healthcare. The law is too blunt a weapon in an area of moral and ethical choices that are heavily contingent upon the circumstances prevailing in a particular case’.