Deference or Deliberation: Rethinking the Judicial Role in the Allocation of Healthcare Resources
Medicine and Law: World Association for Medical Law 2005 June; 24(2): 309-322
The development of strategies by which healthcare resources are explicitly rationed has created significant challenges for many governments. In particular, those undertaking allocative decisions may struggle to establish sufficient legitimacy to enable them to make choices which are morally and politically controversial without generating distrust and resistance, which could jeopardise the effectiveness of the decision-making regime. This article considers possible means of addressing this difficulty from the perspective of public law. The mechanism which is currently favoured, most clearly seen in the UK, is to establish regulatory agencies which apply scientific and social-scientific methodologies to priority-setting questions. This has not been entirely successful. Accordingly, the article will propose a more developed role for courts, which can require that reasoned, relevant justifications for allocative choices are offered and thus provide a foundation for broad public deliberation on rationing. However, in order to fulfil such a function, the judiciary will need to modify its traditionally deferential stance on issues of this type. South African and Canadian cases illustrate how such a change may come about.
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