Essay question

“The Department of Health estimates that the NHS must make efficiency savings of up to £20 billion over the next four years”.

Discuss this statement in the context of recent reforms and legislative change affecting the NHS and rationing decisions.

Outline answer

The question focuses on the financial constraints that have been imposed upon the NHS and the potential effects on patient care and rationing of treatment. You may want to begin your answer with a brief description of the inception of the NHS with recognition that at that time it was a unique healthcare service that aimed to offer healthcare for all that was free at the point of delivery. However, over the last 70 years or so, the socio-political and demographic landscape has changed considerably, imposing numerous strains upon the system.

Two issues that you might wish to consider which have been instrumental in this change are demographic change as well as advances in medical technology. There is an increasing proportion of older persons and the total population has increased considerably over the last half century. People are also living longer. Advances in medical technology mean that options for investigation and treatment are getting more plentiful, sophisticated and costly. The NHS has a finite budget and how can it be expected to cope with this increasing demand?

Section 1 of the National Health Service Act 2006 obliges the Secretary of State to promote a comprehensive Health Service designed to secure improvement in the physical and mental health of the people of England and extends to the prevention, diagnosis and treatment of illness. The duty is discharged through a number of NHS bodies. Major structural changes were introduced by the Health and Social Care Act 2012. These changes include the commissioning and procurement of NHS services and devolution of commissioning to general practitioner consortia called Clinical Commissioning Groups (CCGs), overseen by NHS England. Recent reforms include the introduction of Primary Care Networks (PCNs) which bring together general practices to work with community services, social care and the voluntary sector to provide primary care. Integrated care partnerships (ICPs) are alliances that work together to deliver care and include hospitals GPs, mental health and community services. PCNs will cover 30-50,000 of the population and ICPs 250-500000 people. Sustainability and transformation partnerships (STPs) cover 1-3 million people and bring together NHS provision (those who deliver care and services), NHS commissioners (those who pay for and commission services) local authorities and other partners to plan and provide for long-term healthcare needs of local communities. STPs are evolving into (and will soon be replaced by) ICPs which will have greater autonomy and responsibility for managing healthcare planning and resources. They are expected to be introduced by the end of 2021 although this might be delayed due to the Covid-19 pandemic.

With regard to resource allocation, it must be remembered that scarcity of resources is not a new problem. One of the earliest cases that dealt with this issue was R v. Cambridge DHA ex p B [1995], in which Sir Thomas Bingham MR recognised that difficult and agonising decisions have to be made when ascertaining how limited budgets are best allocated for maximum benefit for the greatest number. Resource allocation decisions tend to be tackled in two ways. The first is to evaluate the efficacy of treatment using quality adjusted life years (QALYs). The rationale behind QALYs is to provide a measure of the state of health of a person in that one QALY represents one year of life in perfect health. QALYs are used to estimate years of life in perfect health following a particular intervention or treatment. An important issue is that this calculation will include elements that are subjective to the decision-maker.

The second aspect of contemporary rationing decisions concerns specialist high cost therapies. Healthcare commissioners have to decide whether to fund such therapy. There is considerable case law in this area. Funding bodies need to determine “exceptionality” in individual cases (Rogers) but if commissioners operate policies of never funding a treatment, then this might be regarded as an illegitimate blanket policy (Rogers). The courts have emphasised the need for proportionality and that funding bodies should consider being less restrictive in evaluating cost effectiveness at end-of-life (Ross). It should also be remembered that “exceptional” does not necessarily mean that the patient in the case in question is the only person with this condition. In other words a similar patient in a similar situation would not necessarily negate the concept of exceptionality (Ross). Should funding bodies expressly state that cost is a relevant factor? To some extent this issue was addressed in Rogers and Otley, and you may wish to include judicial commentary in your answer.

Finally, do not forget to provide a conclusion (and possibly suggestions for law reform) based upon the arguments that you have set out.