#— Journal of Comparative Policy Analysis: Research and Practice 5:149-166,2003

© 2003 Kluwer Academic Publishers. Manufactured in The Netherlands.

Judicial Review and the Allocation of Health CareResources in Canada and the United KingdomBYRON M. SHELDRICK b.sheldrick@uwinnipeg.caDepartment of Politics, University of Winnipeg, 515 Portage Avenue, Winnipeg,Manitoba R3B 2E9, Canada

Key words: judicial review, health care, rights

Abstract

This article compares the significance of judicial review as a means for groups and individuals tochallenge the allocation of resources in the health care field in the United Kingdom and Canada. Itargues that judicial review can play an important role not only as a means of reversing decisionsbut also as a means of leveraging access to policymakers and decision making processes. Thedegree to which judicial review plays this role will depend, in part, on the structure of the judicialsystem and, in particular, on the existence of a rights tradition.

Introduction

The past two decades have been a turbulent period for the delivery of publicservices. The ascendency of governments driven by a neoliberal governmentpolicy agenda led to a politics of fiscal restraint and state restructuring in manyWestern democracies. This shift meant deep cuts to many public services andthe rationalization and restructuring of service delivery. In the health care field,these issues have been compounded by an aging population and the develop-ment of new technologies that add considerably to the cost of delivering healthcare. As result, health care systems throughout the industrialized world havebeen faced by a common set of problems. While demand for service has in-creased, the capacity of the system to deliver those services has come understrain. In general terms, this has meant a restructuring of health care delivery(including experimentation with private sector delivery models), the "downsiz-ing" and rationalization of health care institutions (closing of hospitals and ashift towards community-based care), and the rationing of services (delistingof services from publicly financed health care systems).

As budgets become increasingly constrained, the distribution of health careresources has come under close public scrutiny. The restructuring of healthcare systems, however, has made it more difficult for people to participate inallocation decisions and to hold decision makers accountable. The adoption ofthe internal market in the U.K., for example, resulted in greater autonomy for

150 SHELDRICK

health authorities, while limiting individual participation and parliamentary andministerial oversight (Longley, 1990; Elsenaar, 1999; Hughes, 1991). In the U.K.,these trends have continued with more recent health care reform initiatives,such as the current proposals for the development of strategic health authorities(DOH, 2001; Leys, 2002). The capacity of citizens to be involved in allocationdecisions is frequently limited. In part this is due to limited opportunities toparticipate, but it also reflects the complex nature of medical expertise involvedin this policy field. Many people will not appreciate the implications of allocationdecisions until they are adversely affected by them in a personal way.

In this context, the question of governance within the health care field be-comes critically important. As Rhodes has argued, the restructuring of servicedelivery has manifested itself in a "hollowing out" of the state (Rhodes, 1996;Jessop, 1994). Traditional mechanisms of parliamentary control and account-ability are increasingly absent and/or ineffective as governance becomes de-centralized and devolves to nontraditional political institutions.1 Consequently,courts are increasingly being asked to step into this void and exert control overdecisions related to the allocation of public goods. Judicial review of health careallocation decisions has become an increasingly important vehicle by which af-fected individuals attempt to alter outcomes.

It is important to understand the mechanisms by which courts approach thesetasks and the implications for policymakers and program administrators. In par-ticular, it would be wrong to assume that courts from different jurisdictions willapproach this task in a similar fashion. Courts are institutions that have embed-ded within them sets of "beliefs, paradigms, codes, cultures and knowledge"(March and Olsen, 1989, p. 26). The specific paradigms that inform the court'sunderstanding of its role vis-a-vis the state and, more particularly, whether arights discourse has been incorporated into its jurisprudence will affect thedegree to which a court will intervene in public sector resource allocationdecisions.

Individuals or groups might seek to challenge both microlevel and macroleveldecisions in the courts. Microlevel decisions would involve decisions aboutindividual treatments. The denial of funding for a particular treatment for anparticular patient or a challenge to a clinical decision about the best courseof treatment for a patient might fall within this category. Macrolevel decisions,on the other hand, would involve the allocation of health care resources at abroader level. Decisions to close a hospital, or to shut down a cardiac treatmentcenter, or to not fund a particular medical procedure or drug would constitutemacrolevel allocation decisions. The capacity of individuals and groups to chal-lenge these decisions in court creates significant difficulties for both individualclinicians and health care planners. Successful challenges can radically alterbudget calculations and spending priorities and may even require the rethinkingof plans for health care reform and restructuring.2

This is not to argue that judicial interventions are a mechanism for achievingbroad social transformation. There is a considerable literature about the limits of

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 151

judicial action as a meaningful vehicle for achieving social change (Rosenberg,1991; Freeman, 1990; Fudge and Glasbeek, 1992). While some of these assess-ments may be overly pessimistic about the potential of law as a vehicle for socialchange (Herman,1993; McCann, 1991; Bartholomew and Hunt, 1990), never-theless, it appears quite clear that judicial decisions, in the absence of sociallytransformative movements within civil society and the state, will not producelongstanding social change. The focus of the present analysis is on the utiliza-tion of courts to intervene in specific policy decisions. The degree to which suchinterventions may produce social transformation is beyond the scope of inquiry.

Judicial challenges to allocation decisions have, in general, been difficult towin. Indeed, at one point it was possible to argue that health care administra-tors had little to fear from judicial review (Newdick, 1993; Caulfield, 1994). Thisis due to the structure of judicial review, which limits its utility in challengingsubstantive policy decisions (as opposed to procedural decisions), especiallywhere such policies are based on specialized knowledge and expertise. Thecapacity of individuals and groups to successfully challenge resource alloca-tion decisions depends, in part, on the structure of the judicial system and thedegree to which it includes a rights-based model of entitlement. A comparisonbetween Canada, which has an entrenched Charter of Rights and Freedoms,and the U.K., which until recently did not, illustrates the way in which a rightsdiscourse expands the potential of judicial review in the health care field. It doesso by directing the judicial inquiry away from the narrow issues that are the pri-mary focus of traditional judicial review doctrine. This shift not only increasesthe likelihood of success before the courts but also increases the capacityof individuals and groups to utilize law as a means of leveraging access todecision-making processes.

The comparison between Canada and the United Kingdom is also usefulin that the legal basis of both systems does not rest on a rights framework.The National Health Service (NHS) was founded very much on the notion ofgovernment duties rather than citizen rights. Similarly, in the Canadian context,jurisclictional divisions between the federal and provincial governments led tothe framing of the health care system in terms of the legal obligations of thestate, not user rights. In Canada, where provincial governments have primaryjurisdiction over health care but limited financial resources, the Canada HealthAct of 1984 imposes various requirements for program design that must bemet by provincial governments in order for them to qualify for federal transferpayments.3 Arguably, to the extent that a "rights discourse" has developedaround health care, it has been imposed upon the legal structure of health caredelivery systems.

Judicial review and administrative law: The U.K. context

Judicial review has historically provided very little comfort to those seeking tooverturn resource allocation decisions in the health care field. In the United

152 SHELDRICK

Kingdom very few cases have been successful. In short, the history of judicialreview in this area provides little that would cause policymakers to worry aboutthe likelihood of judicial intervention. In part, this situation stems from the natureof judicial review in administrative settings. Historically, judicial review of an ad-ministrative decision was considered to be available in three different contexts:procedural unfairness, illegality, and irrationality (Council of Civil Service Unionsv. Minister for the Civil Service, 1985). Procedural unfairness is concerned withthe process followed to reach a decision and seeks to ensure that individualshave a fair and full opportunity to put their case before administrative deci-sion makers. Illegality is primarily concerned with ensuring that administrativedecision makers have legal authority for the actions they take and that thesedecisions correctly apply the law as it stands. Irrationality is a potentially broadground of review that, unlike the other grounds, examines the substantive con-tent of the decision. However, irrationality has been interpreted by the courts ina fairly restrictive fashion. Essentially, a decision must be so unreasonable thatno reasonable decision maker could possibly reach it before the courts haveintervened (Associated Provincial Picture Houses v. Wedensbury Corporation,1948; Leyland and Woods, 1997, pp. 206-208).

The orientation of courts on judicial review applications has not been to deter-mine the correctness of an administrative decision. Rather, as Oliver has argued,judicial review has operated to establish a set of good management principlesto govern administrative decision making (Oliver, 1987). Judicial review is notgenerally interested in the substantive merits of administrative decisions, butrather is concerned with the manner by which those decisions are reached.Consequently, even where a challenge is successful, the original decision willrarely be invalidated. Rather, the court is likely to "quash" the decision andsend the issue back to the original decision maker for a new hearing. This out-come is significant, for it is well established in administrative law that there isno prohibition on the administrative decision maker coming to the exact samedecision on a rehearing. So long as whatever defects existed in the originalprocess are remedied, the original decision maker is free to come to the samedecision.

The reluctance on the part of judges to overturn administrative decisions re-flects the dichotomy between law and politics. The greater the policy contentof an administrative decision, as reflected in the presence of discretion or ofcomplex and specialized expertise, the greater the likelihood that judges willdefer to that expertise and refuse to intervene. Decisions about the allocationof public services and public resources often raise this sort of issue. Moreover,the potential ramifications of intervening in a resource allocation issue are diffi-cult for the court to determine. The implications of resource cases frequently gobeyond the parties before the court and may have consequences for the entirehealth care system. Given the limitations of the adversarial process, however,courts lack both the information and the capacity to assess the broader rami-fications of their decisions (Allison, 1994). For these reasons, courts have been

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 153

hesitant to become involved in what are seen as policy debates, preferring todefer to administrative expertise and not intervene.

These concerns are reflected in the 1995 case of R. v. Cambridge HealthAuthority ex parte B. In that case, the courts were asked to review the refusalof the Cambridge Health Authority to authorize funding for the treatment fora 10-year-old girl who was suffering from acute myeloid leukemia, from whichshe was expected to die. The case received considerable media attention andprovides an extremely dramatic context for considering the interplay betweenlegal concepts of judicial review and the policies that underpinned the NHSinternal market, the rationing of health care services, and medical diagnosticexpertise (James and Longley, 1995).

Child B had undergone a lengthy treatment for leukemia. In January 1995, herdoctors estimated that she had six to eight weeks to live and were of the viewthat further treatment should be discontinued in favour of palliative care. B'sfather sought further medical opinion and located experts who felt that a furthercourse of chemotherapy, costing £15,000, followed by a second bone marrowtransplant, costing approximately £60,000, might prove successful. However,the best estimates were that such procedures would have a 10%-20% chanceof success.

Doctors at Hamersmith Hospital in London were willing to undertake thetreatment but did not have any beds available. Consequently, B's family hadto pursue treatment in the private sector. From the point of view of the offi-cials at the Cambridge Health Authority, however, this situation meant Child B'scase had become an issue involving the use of resources to purchase med-ical services from other providers within the internal market. Moreover, giventhat it was not considered a normal practice to perform a second bone marrowtransplant in cases of this sort, the health authority viewed the treatment as"experimental" in nature. After considering the cost of the procedure, the rec-ommendations of B's own doctors, and the limited chance of success, the healthauthority refused to fund the treatment. B's family sought judicial review of thedecision.

The Child B case provides an excellent illustration of the inadequacy of ad-ministrative law concepts for interrogating policy decisions around resourceissues. Although B's father was successful before the Divisional Court, that de-cision was quickly overturned by the Court of Appeal. The Court of Appeal wasquite clear about the limited role of judicial review in cases of this sort:

... the courts are not, contrary to what is sometimes believed, arbiters asto the merits of cases of this kind. Were we to express opinions as to thelikelihood of the effectiveness of medical treatment, or as to the merits ofmedical judgement, then we should be straying far from the sphere whichunder our constitution is accorded to us. We have one function only, whichis to rule upon the lawfulness of decisions. That is a function to which weshould strictly confine ourselves (R v. Cambridge Health Authority ex parte6,1995, p. 736).

154 SHELDRICK

Having defined the role of the court in this limited fashion, the Court of Appealconsidered the arguments of the trial judge, namely, that the health authority'sclaim that it lacked the resources for the procedure had not been adequatelyestablished.

The trial judge had argued that the health authority, when faced with a lifeand death decision of this sort, could not simply "toll the bell of tight resources"(ft v. Cambridge Health Authority exparte B, 1995, p. 737). Rather, the healthauthority should explain the rationale for denying funding and elaborate on thepriorities that led to that decision. The trial judge went so far as to say that if thehealth authority wished to rely on a resource-based argument, then its represen-tatives should place before the courts their accounts in order to demonstratethe validity of the argument. In short, the health authority would have to estab-lish that funding Child B's treatment would mean some other patient would gowithout service. The trial judge was trying to get beyond the indeterminancyof the resource allocation decision and establish a more concrete basis forevaluating the claims of the health authority. In the absence of such evidence,the trial judge felt that the health authority's decision to refuse the fundingcould be considered irrational within the Wedensbury framework discussedabove.

The Court of Appeal disagreed, arguing that it was not the role of the courtto second-guess budgetary and resource allocation decisions made by healthcare administrators. Master of the Rolls Sir Thomas Bingham stated this opinionin the following terms:

I have no doubt that in a perfect world any treatment which a patient, ora patient's family, sought would be provided if doctors were willing to giveit, no matter how much it cost, particularly when a life was potentially atstake. It would however, be shutting one's eyes to the real world if the courtwere to proceed on the basis that we do live in such a world. It is commonknowledge that health authorities of all kinds are constantly pressed to makeends meet. They cannot pay their nurses as much as they would like; theycannot provide all the treatments they would like; they cannot purchase all theextremely expensive medical equipment they would like; they cannot carryout all the research they would like; they cannot build all the hospitals andspecialist units they would like. Difficult and agonising judgments have to bemade as to how a limited budget is best allocated to the maximum advantageof the maximum number of patients. That is not a judgment which the courtcan make. In my judgment, it is not something a health authority such asthis authority can be fairly criticised for not advancing before the court (R. v.Cambridge Health Authority ex parte B, 1995, p. 737).

The court would not require health authorities to produce their books anddemonstrate their actual fiscal position. The Court of Appeal viewed such aproposition as unrealistic and unreasonable. The court also viewed as unten-able the proposition that the health authority should demonstrate that some

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 155

patients would go without if treatment for B were provided. No administrator,the court ruled, could run its financial affairs in such a fashion as to provide thatsort of evidence.

In short, the Child B case demonstrates the reluctance of courts, even inthe face of a life and death decision, to interfere with resource allocation de-cisions in the health care field. The case clearly stands for the autonomy ofadministrators to make budgetary and resource allocation priorities without ju-dicial oversight and interference.4 This reticence by the courts to get involvedin resource allocation decisions has dominated judicial thinking in the UnitedKingdom. Although there have been successful challenges to health care allo-cation decisions, these cases tend to turn on very specific factual situationsand offer little encouragement for those who would like to see the courts takea more proactive role in the field.

In 1997, the Divisional Court considered a challenge to the decision of NorthDerbyshire Health Authority to refuse to fund Beta Interferon treatment foran individual suffering from relapsing/remitting multiple sclerosis (R. v. NorthDerbyshire Health Authority, exparte Fisher, 1997). Surprisingly, given the firmposition taken by the Court of Appeal in Child B, the challenge was success-ful. The Divisional Court ruled that the health authority's denial of funding wasirrational within the Wedensbury framework. There were, however, several no-table differences between the Fisher and Child B. Most notably, in Fisher theweight of clinical opinion clearly supported the proposed treatment, whereasin Child B there was considerable doubt as to the wisdom of the additionalprocedures. Moreover, in Fisher, the NHS executive had issued a policy circularasking health authorities to begin developing and implementing procedures forthe use of Beta Interferon. The North Derbyshire Health Authority had resisteddoing so, arguing that until a national clinical trial of the drug had been com-pleted, it would not authorize its prescription on a regular clinical basis. Thehealth authority persisted with this position long after it became clear that nonational clinical trial would be held. The court concluded that the health au-thority had been disingenuous and had not acted in good faith in its dealingswith Fisher. Moreover, although in a decentralized NHS the executive's policycircular was not mandatory, it was a clear indication of the overall directionof the health care system and something the health authority was required toconsider when making its own planning decisions.

The Fisher case, then, does not provide a strong precedent for those whowould attempt to utilize the courts to challenge resource allocation decisions.Too much turns on the specific behavior of the health authority. Like so manyadministrative law cases, Fisher deals primarily with the propriety of how Fisherwas treated. However, the Fisher case points to another important dimensionof litigation in this area. Although clearly an individual or group that takes a caseto court hopes for victory, the litigation itself may at the same time play an im-portant purpose regardless of the final outcome. In the context of fragmentedstructures of service delivery, such as the NHS, individuals may have difficulty

156 SHELDRICK

securing access to decision makers. The Fisher case was not appealed be-yond the Divisional Court. Indeed, there was no need, since even by the timethe Divisional Court had reached its decision, the health authority had revisedits policies to provide for the provision of Beta Interferon treatment. Fisher's liti-gation, although not likely the determinative factor in this decision, undoubtedlyplayed some role.

Litigation, in this context, is one way of leveraging access (McCann andSilverstein, 1993, p. 137). It becomes a vehicle by which individuals and groupscan bring pressure to bear on state institutions. This "institutional leverage" thatthe courts provide may be useful in securing rights to participate in decisionmaking or in altering/expanding the parameters governing the implementationof a policy (McCann and Silverstein, 1993, p. 138). The advantage of concep-tualizing litigation from this perspective is that it takes us away from thinkingabout litigation as a zero-sum game in which the outcome of a particular casecategorically determines outcomes in future cases.5

Consequently, even though the Child B case has made it very unlikely thatresource allocation decisions will succeed, future cases are not precluded frombeing brought. Future litigants, such as Fisher, will to continue to bring casesprecisely because the existing structure of decisions provides limited oppor-tunities for participation and limited accountability mechanisms. The costs oflitigation to the state are not inconsiderable. Litigation represents a real cost togovernment, not only in terms of staff time devoted to the case but also in termsof delay and interruption to the delivery of services. This cost might lead thegovernment to consider negotiating a settlement, rather than relying on prece-dents that might ultimately give them a victory if the case were pursued to theend of a costly trial and appeal process. Litigation, then, becomes a way notonly of reversing decisions that individuals disagree with but also of openingup the system to a broader range of interests and voices.

This is not to say, however, that the degree to which litigation can play thisleveraging role is completely unrelated to the potential for success in court.The greater the likelihood of success, the more willing policymakers will be tonegotiate a settlement. The less likely a case is to succeed, the greater thepossibility that policymakers may take a hard-line position and defend theirdecision-making autonomy against what might be viewed as unwelcome inter-ventions by dissatisfied clients.

There are, of course, numerous other factors that will affect the capacity ofgroups and individuals to access the courts. The organizational capacity of in-terest groups, the existence of legal aid programs or court challenges programsthat subsidize the costs of litigation, and the existence of other institutionalmechanisms for advancing claims (ombudsman, grievance procedures, etc.)are important factors that will affect the likelihood of groups utilizing litigationas a strategic resource. At the same time, the degree to which judicial doctrinecreates meaningful spaces for advancing a claim needs to be understood as asignificant variable.

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 157

Rights and resource allocation: The Canadian context

The existence of a rights discourse within a legal tradition adds an importantdimension to the above equation. It reduces the constraints imposed by tradi-tional conceptions of judicial review and permits resource allocation questionsto be conceptualized as issues of rights, rather than as issues of policy choice.A rights tradition permits the courts to apply their own expertise about lawand rights to policy questions, rather than having to defer to the policy ex-pertise of administrators. In the Child B case, for example, some might feeldisquiet with the health authority's decision to not fund treatment. The deci-sion seems to conflict with the individual's "right to life," yet the cost to theHealth Authority seems relatively small. Hence an emotional response mightfavor judicial intervention.6 From a policy perspective, however, the implica-tions of intervention are potentially devastating for the integrity of the process.From this point of view, the decision of the court was undoubtedly correct.Conceptualizing the question as a rights issue, however, gives the court whatit lacked in the Child B case; namely, a basis on which to assess the policytradeoffs made by the health authority. Rights, then, provide the courts with avehicle for navigating the complex and contradictory world of law, politics, andadministration.

This is not to argue that the existence of a rights jurisprudence will makejudges any better qualified to make policy judgements of this sort. A verystrong argument can be made that judges, due to the nature of their trainingand the limits of judicial process, lack the tools necessary to effectively makethe cost-benefit assessments that characterize policy determinations (Manfrediand Maioni, 2002; Allison, 1994). The existence of a rights discourse, however,permits the court to shift the terrain on which a resource allocation decision isconsidered. The assessment of costs and benefits must be considered within arights framework. This permits the courts to assert their authority and expertiseover and above the expertise of policymakers.

The significance of a rights framework is well demonstrated by the judicialexperience with the Canadian Charter of Rights of Freedoms. Prior to the en-actment of the Charter, very few cases reached the courts challenging adminis-trative decisions in the allocation of health care resources. Indeed, early casessuggested that policy decisions of this nature were beyond the scope of judicialreview (Re Brown and Brock and Rentals Administrator, 1945). Indeed, even re-cent cases have been notably unsuccessful in the absence of a Charter issue.In these cases, the courts have relied on quite traditional administrative lawprinciples in declining to review decisions to shut down or restructure hospitalservices {St. Joseph Island Hospital Assn. v. Plummer Memorial Public Hospital,1996; Fogo (Town) v. Newfoundland, 2000).

There are, however, several sections of the Canadian Charter that have animpact on health care resource allocation decisions. Section 7 of the Charterprovides that

158 SHELDRiCK

Everyone has the right to life, liberty, and security of the person and theright not to be deprived thereof except in accordance with the principles offundamental justice.

Although originally conceived of as a legal right, this section has implicationsfor the health care field. In the Morgantaler decision, the Supreme Court ofCanada used this section to invalidate a system of Therapeutic Abortion com-mittees whose function was to determine the medical necessity of an abortion(Morgantaler, 1988). The court ruled that the inconsistent structuring of thesecommittees across the country violated the security of the person of womenseeking abortions. Although Morgantaler arose in the context of criminal lawprovisions dealing with abortion, the case nonetheless has important implica-tions for health care (Gavigan, 1992). In particular, the court ruled that security ofthe person involves both physical and psychological dimensions. Where the fail-ure to provide a medical procedure might lead to adverse health consequences,either physically or psychologically, this section might be used by individualsor groups to leverage access to decision-making processes. Canadian courtshave held that the Section 7 requirement of fundamental justice involves, at aminimum, the provision of some sort of hearing or consultative process (Singh,1985).

Rights provisions similar to Section 7 have implications for a variety of treat-ments or processes that involve some deprivation of liberty. Liberty rights mightbe used to interrogate the detention of psychiatric patients, the administrationof drug therapies against the wishes of a patient, or even the administration ofmedical procedures over the religious objections of an individual. Even if thecapacity of physicians in cases of this sort is ultimately upheld by the courts,the existence of liberty and security rights will enhance the capacity of the in-dividuals and groups to delay the administration of treatment and to leverageaccess to decision-making structures.

Decisions about the allocation of medical resources may also be questionedby reference to equality rights. Section 15 of the Canadian Charter of Rightsand Freedoms provides the following:

Every individual is equal before and under the law and has the right to equalprotection and equal benefit of the law without discrimination and, in partic-ular, without discrimination based on race, national or ethnic origin, colour,religion, sex, age or mental or physical disability.

The reference to physical or mental disability in Section 15 provides tremen-dous scope for judicial intervention in health care decisions. Resource alloca-tion decisions fundamentally involve making difficult choices about what sortsof treatments will be funded. Consequently, they will routinely produce differ-ential impacts on people based on the physical and/or psychological conditionof those people. To the extent that any illness potentially raises questions ofdisability, equality rights become a powerful tool for those who would seek tointervene and challenge health care resource decisions.

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 159

The manner by which rights discourse, and equality rights in particular, ex-pand the potential for judicial review of resource allocation decisions can beseen in the case of Eldridge v. The Attorney General of British Columbia (1997).In that case, the Supreme Court of Canada considered a challenge brought byhearing-impaired individuals to the British Columbia government's decision tonot fund a program of sign language interpretation for hearing-impaired patientsin hospitals. The case was complicated by the fact that sign language interpre-tation had never been provided by the government. Rather, it had been offered,free of charge, through a private nonprofit agency (the Western Institute for theDeaf and Hard of Hearing). In 1990 the Institute discontinued the service due tolack of sufficient funds. Prior to canceling the program, however, the Institutemade two applications to the Provincial Ministry of Health for funding. The costof the proposed program was estimated to be approximately $150,000 per year.The Ministry government rejected both applications on the basis that the pro-gram would strain available resources and create a precedent for the funding ofsimilar translation services, particularly for the sizeable non-English-speakingimmigrant community in British Columbia.

In some respects, then, the Eldridge case raises issues similar to Child Band Fisher. The state refused funding for a service related to the provision ofmedical care. However, both Child B and Fisher involved the delivery of primaryhealth care services, whereas in Eldridge the case centered on the provision ofan ancillary service for those dealing with the health care system. In Eldridge,it was never in dispute that health care services were provided equally to boththe hearing impaired and the non-hearing impaired. However, the argument wasthat individuals with hearing disabilities were disadvantaged in their encounterswith the medical system and that, consequently, the quality of their medicaltreatment was compromised.

Both at trial and before the British Columbia Court of Appeal, the approachtaken was reminiscent of that followed in Child B. The courts, while acknowl-edging the difficulties faced by the hearing impaired, refused to intervene. Mr.Justice Hollinrake, speaking for the majority of the Court of Appeal, held thatthe range of medical services provided falls within the discretion of individualhospitals as to how best to spend the funding they receive from government.The absence of interpreters, he argued, was not the result of a governmentpolicy or of government legislation, but rather was the result of each hospi-tal's budgetary discretion. As such, the decision did not result in the denial ofa "benefit of the law" as required under Section 15(1) of the Charter. Similarly,Mr. Justice Lambert of the Court of Appeal argued that in the allocation ofscarce financial resources, governments must make choices about spendingpriorities and the courts should defer to legislative policy and administrativeexpertise.

When the case reached the Supreme Court of Canada, however, the resultwas quite different. The court, in a unanimous decision, found that the decisionnot to fund sign language treatment violated the equality rights provisions of

160 SHELDRICK

the Charter and could not be justified as a reasonable limit on those rights.7

In reaching that decision, the court rejected the formalistic approach taken bythe lower courts, in which sign language interpretation was characterized asan ancillary service and therefore a matter of spending discretion. Rather, thecourt held that effective communication is a necessary component of the de-livery of medical services and that the failure to provide sign language servicesrepresented a serious denial of equality rights.

With respect to the administrative arguments regarding health care fund-ing and budgetary discretion, the court was relatively unsympathetic. UnlikeChild B, where the court refused to examine the budgetary position of the healthauthority, the Supreme Court of Canada felt completely justified in doing justthat. In Eldridge, the court calculated the percentage of the total health carebudget represented by the estimated cost of sign language interpretation andconcluded that "the refusal to expend such a relatively insignificant sum tocontinue and extend the service cannot possibly constitute a minimum impair-ment of the appellants' constitutional rights" (Eldridge v. The Attorney Generalof British Columbia, 1997, para 87). The shift in terminology here is important. InChild B, the court was willing to acknowledge that any additional expendituremight compromise future health care spending and would, therefore, potentiallyhave an effect on future patients who were unknown to the court. In Eldridge, onthe other hand, the focus is clearly and exclusively on the individuals before thecourt, for it is their rights entitlements about which the court is being asked torule. The issue of how to deal with future claimants, and the budgetary implica-tions of the decision, are considered to be the state's concern, not the courts'.

The government of British Columbia argued that the implications of a findingin favor of the applicants would be fiscally devastating. British Columbia hasa large immigrant population, for which English is not the first language. Thegovernment argued that requiring sign language interpretation would involvea requirement to provide oral translation to these other groups of potentialclaimants. Moreover, the government might find itself in a position of having tospend health care dollars to accommodate the needs of myriad disadvantagedgroups. Again, the court was unimpressed:

These arguments miss the mark. If effective communication is integrally con-nected with the provision of health care... then the fact that there are a num-ber of medical services that benefit disabled persons that are not covered bymedicare is immaterial.... [The appellants] ask only for equal access to ser-vices that are available to all. The respondents have presented no evidencethat this type of accommodation, if extended to other government services,will unduly strain the fiscal resources of the state. To deny the appellants'claim on such conjectural grounds, in my view, would denude Section 15(1)of its egalitarian promise and render the disabled's goal of a barrier-free soci-ety distressingly remote {Eldridge v. The Attorney General of British Columbia,1997, para 92).

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 161

Under the Charter of Rights and Freedoms, the financial implications of serviceprovision now need to be spelled out and justified by the government. Theissue is no longer conceptualized as a matter of administrative discretion andexpertise but rather as a question of the degree to which an impairment of rightscan be justified. The introduction of a rights discourse, then, radically changesthe judicial terrain on which resource allocation questions are debated.

The broader implications of this change can readily be seen in the Canadiancontext. Recently, a British Columbia court ordered the government to fundan expensive early intervention treatment program for autistic children {Autonet al. v. British Columbia Attorney, 2000). Adopting the reasoning of Eldridge,the court had little difficulty arriving at the conclusion that autistic childrenwere directly discriminated against in comparison to both nonautistic childrenand other mentally disabled adults. The government again relied on the argu-ment that a decision requiring funding would jeopardize the health care budgetand endanger the provision of necessary medical services to other individuals.The court rejected this argument out of hand. The parents of the children hadsubmitted studies suggesting that the treatment might actually provide a netsavings to the government over the long term. In the face of this evidence, thecourt demanded more compelling evidence from the government as to the realcost implications of providing this treatment. TheAuton case provides a furtherexample of how a rights discourse broadens the scope of judicial inquiry intoresource allocation decisions. Such outcomes cannot help but lead to futurecases challenging an array of health care decisions.

Conclusion

The Charter of Rights and Freedoms, then, has greatly transformed the natureof legal discourse concerning resource allocation questions. It has provided in-dividuals and groups with an important tool in their struggles with governmentover the proper funding of health care. At the same time, it has limited the utilityof arguments about scarce resources. In Child B, the court suggested that itwould be very difficult, if not impossible, for the state to provide evidence ofthe long-term implications of any funding decisions. Moreover, the court waswilling to take for granted the perspective that scarce resources required diffi-cult choices and that such choices were the proper purview of the health careadministrator. In the Canadian context, however, this viewpoint is increasinglynot the case. The Charter requires that administrators justify their decisions anddemonstrate that the impairment of an individual's rights is as minimal as pos-sible. In short, the courts in Canada now seem to require the sort of evidencethat the British courts have historically not demanded.

This difference reflects a broader change. The discourse of rights placesthe impact on the individual of any policy at the forefront of any judicial con-sideration. Requiring funding for autistic children may very well require healthcare administrators to revisit budget priorities. The difficulty, from the court's

162 SHELDRICK

perspective, is that the individuals affected by those subsequent decisions arenot before the court. In the absence of a rights standard, it is difficult for courtsto say that their assessment of state priorities is any better or preferable to thatof the administrator. In this context, the courts rightly defer to the expertise ofthe health care professionals and managers. Once rights enter the picture, how-ever, the courts have a vehicle by which they can intervene in these decisions.The adoption of a rights standard gives the courts a claim of expertise and amandate to ensure that the individuals rights are protected. This perspectiveprovides the courts with considerable scope to review health care allocation de-cisions. Moreover, it shifts the focus of inquiry from a collective decision, withthe expertise of health care administrators playing a pivotal role, to an inquiryfocused on the impact of any single allocation decision on individual patients.In this context, the expertise of health care administrators cannot be taken forgranted.

The result is an enhanced role for the courts, one that potentially involvesa reduction in the capacity of policy analysts to rationally plan for future con-tingencies. This new role requires policy analysts to change their orientation.Rights issues and the potential for litigation need to be assessed when makingresource allocation decisions alongside questions of efficiency and effective-ness. Administrators must learn to incorporate a rights framework into the waythey prioritize health care funding. They must do this precisely because doingso will help to protect their decisions from judicial interference. Giving fullerconsideration to rights issues will help to avoid potential problems that mightgive rise to litigation and will better enable administrators to demonstrate tothe courts that they have taken rights seriously and made a genuine effort tominimally impair rights. Although this approach will make the task of balancingcompeting claims far more difficult, in the end it should produce a health caresystem that is more fair and more just. However, the increased importance of arights framework may also mean a change in the balance of power within thestate, with greater power shifted away from policy experts in departments anddevolved agencies to justice departments. Certainly within the Canadian state,the introduction of the Charter of Freedoms has greatly enhanced the role ofthe Department of Justice, which now routinely engages in a "Charter review"of major policy proposals.

In Britain, despite the success of some claims, the courts have resisted as-suming a greater role in the scrutiny of resource allocation decisions. With theincorporation of the European Convention of Human Rights, one might expectthat more cases challenging health care allocation decisions will be brought,both as a means of overturning allocation decisions and as a means of lever-aging access to the decision-making process (O'Sullivan, 1998). This likely out-come will necessitate the courts becoming increasingly involved in resourceallocation matters and in reviewing the priorities of health care administratorsand will require health care administrators to change the way they function andto incorporate a greater understanding of law and rights into their operation.

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 163

Of course, the degree to which this occurs will depend, in part, on both thewillingness of social groups and individuals to view the courts as a viable mech-anism for advancing such claims and the willingness of the courts to developa rights framework that will support and sustain these cases. To date, the caselaw dealing with the Human Rights Act remains fairly scant, and it may be tooearly to predict with any certainty how the courts will receive it.

The recent decision of R v. Camden and Islington Health Authority ex partsK (2002) might indicate a judicial reluctance to take up a rights discourse.8 Inthat case, the court refused to order the health authority to provide community-based psychiatric care for an individual, despite an order from the Mental HealthReview Tribunal that it do so. In considering the issue, the court approachedthe case from a resource allocation/policy perspective and did not address inany depth the European Convention of Human Rights issues that were raisedby the applicant. At the same time, the early jurisprudence under the CanadianCharter of Rights and Freedoms similarly contains a number of decisions inwhich courts were unwilling to apply the Charter in an expansive fashion.

Ultimately, if health care administrators wish to avoid litigation, they shouldbegin to develop mechanisms for integrating a rights discourse into their policyprocesses. One way of doing this would be to open up the health care systemand make it more democratic. Many of the cases that come before the courtsare rife with examples of policy decisions that were made either without con-sultation or with inadequate consultation. The fragmentation of governance inthe health care system and the absence of participatory vehicles for decision-making, particularly in difficult cases of resource allocation, all contribute to thetendency for disaffected groups and individuals to go to the court. Leveragingaccess through the courts is costly and time consuming and may producepolicy outcomes that are undesirable from the perspective of both the stateand the user groups. At the same time, it must be acknowledged that managingdemocratic structures is also difficult and poses a different range of challenges.However, it may be in the interests of policymakers to consider fully the designof consultation of mechanisms and the degree to which such measures en-hance the legitimacy outcomes. This approach certainly may be preferable tolosing control of the policy process to the courts.

Notes

1. Rhodes's "hollowing out" thesis has recently been forcefully criticized by Holliday (2000). It is notmy intention to engage in the debate about the extent to which the state has become hollowedout. Nevertheless, public services have undergone a tremendous restructuring over the pasttwo decades that has seen the attenuation of traditional models of parliamentary accountability(Shields and Evans, 1998; Leys, 2001; McBride, 2001).

2. Although this article focuses on challenges to health care allocation decisions by users of thesystem, other people might seek to utilize the courts to overturns, health care policy determina-tions as well. Physicians, nurses, and other health care professionals might all utilize the courtsin this fashion. For a fuller consideration of the range of cases that might come before the courts,see Manfredi and Maioni (2002).

164 SHELDRICK

3. There is a constderabie literature on health care and the origins of the British and Canadiansystems. For a brief description of the foundation of these systems, see Brown and Payne (1994)and Rice and Prince (2000).

4. The Child B case dealt with a situation in which administrative decision makers were exercisingdiscretionary powers. The courts have released a number of contradictory judgments dealingwith the importance of scarce resources when dealing with statutory duties that are placed onadministrators. In particular, see R. v. Gloucestershire County Council, ex parte Barry (1997), inwhich the House of Lords ruled that scarce resources could be taken into account by a localcouncil in determining how to discharge its obligations under the Chronically Sick and DisabledPersons Act of 1970. By contrast, in R. v. East Sussex County Council, ex parte Tandy (1998), theHouse of Lords ruled that scarce resources were not relevant to a Local Education Authority'sduty to provide suitable education for children unable to attend school.

5. The recent decision of the British Court of Appeal in North and East Devon Health Authorityexparte Coughlan (1999) can also be conceptualized in this fashion. In that case, the Court ofAppeal ruled that the health authority's decision to close the nursing home in which Ms. Coughlanresided and turn her care over to local social services was illegal. The court did not rule thatCoughlan had a right to care provided by the NHS, but rather ruled that the degree of services thehealth authority sought to turn over to Local Authority control went beyond the statutory powersof both the NHS and local authorities as provided in the National Health Service and CommunityCare Act of 1990 and the National Assistance Act of 1948. In addition, the local health authoritieshad promised Coughlan, when she was moved into the nursing home, that it would be her"home for life." The decision, then, turned on a very careful reading of the statutory jurisdictionof the relevant decision makers and the administrative law doctrine of "legitimate expectations."However, the case also dealt with the issue of consultation. The court was extremely criticalof the lack of adequate consultation that had been earned out by the health authority prior tomaking the decision to close Coughlan's nursing home. From this perspective, the decision hassignificant implications for groups seeking to gain access to decision-making processes.

6. I frequently use the Child B case in teaching exercises with Masters of Public Administrationstudents. Despite their understanding of the policy process, they frequently respond very nega-tively to the Health Authority's decision and "conceptualize" the issue as one of the child's rightsand entitlements. This response may reflect the degree to which a rights discourse has takenhold in Canada and become part of our broader political culture since the introduction of theCharter of Rights and Freedoms in 1982.

7. It should be noted that all rights contained in the Charter of Rights and Freedoms are subject tosome limitations. Section 1 of the Charter provides the following:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out init subject only to such reasonable limits prescribed by law as can be demonstrably justified ina free and democratic society.

This section has been interpreted to require the courts to balance the objective behind a leg-islative provision or government action and the degree to which rights are infringed upon with aview to ensuring a degree of "proportionality" (R. v. Oakes, 1986).

8. Elsewhere, I have argued that British courts have often displayed a reticence in taking up a rightsdiscourse, even when it could be integrated into more traditional jurisprudential approaches(Sheldrick, 1998). For a different perspective, see Hunt (1997).

References

Allison, John. (1994). "The Procedural Reason for Judicial Restraint." Public Law 1994, 452-473.Bartholomew, Amy, and Alan Hunt. (1990). What's Wrong with Rights?" Journal of Law and Inequality

9, 501-558.

JUDICIAL REVIEW AND THE ALLOCATION OF HEALTH CARE RESOURCES 165

Brown, Muriel, and Sarah Payne. (1994). Introduction to Social Administration in Britain. London:Routledge.

Caulfield, Timothy. (1994). "Suing Hospitals, Health Authorities and the Government for Health CareAllocation Decisions." Health Law Review 3,7-23.

Department of Health, United Kingdom. (2001). Shifting the Balance of Power within the NHS:Securing Delivery. Department of Health, July.

Elsenaar, Marnix. (1999). "Law, Accountability and the Private Finance Initiative in the NationalHealth Service." Public Law 1999, 35-42.

Freeman, Alan. (1990). "Antidiscrimination Law: the View from 1989." In David Kairys (ed.), ThePolitics of Law, A Progressive Critique. New York: Pantheon Books.

Fudge, Judy, and Harry Glasbeek. (1992). "The Politics of Rights: A Politics with Little Class." Socialand Legal Studies 1,45-70.

Gavigan, Shelly. (1992). "Beyond Morgantaler: The Legal Regulation of Reproduction." In JanineBrodie, Shelly Gavigan, and Jane Jenson (eds.), The Politics ofAbortion. Don Mills: Oxford Uni-versity Press.

Herman, Didi. (1993). "Beyond the Rights Debate." Social and Legal Studies 2, 25-43.Holliday, Ian. (2000). "Is the British State Hollowing Out?" Political Quarterly 71, 167-177.Hughes, David. (1991). "The Reorganisation of the National Health Service: The Rhetoric and Reality

of the Internal Market." The Modern Law Review 54, 88-103.Hunt, Murray. (1997). Using Human Rights Law in English Courts. Oxford: Hart.James, Rhonda, and Diane Longley. (1994). "Judicial Review and Tragic Choices: Ex Parte B." Public

Law 1994, 367-373.Jessop, Bob. (1994). In Roger Burrows and Brian Loader (eds.), Towards a Post-Fordist Welfare

State? London: Routledge.Leyland, Peter, and Terry Woods. (1997). Textbook on Administrative Law. London: Blackstone.Leys, Colin. (2001). Market Driven Politics, Neoliberal Democracy and the Public Interest. London:

Verso.Longley, Diane. (1990). "Diagnostic Dilemmas: Accountability in the National Health Service." Public

Law 1990, 527-552.Manfrodi, C , and A. Maioni. (2002). "Courts and Health Policy: Judicial Policy Making and Pub-

licly Funded Health Care in Canada." Journal of Health Politics, Policy and Law 27, 211-238.

March, J., and J. Olsen. (1989). Rediscovering Institutions: The Organizational Basis of Politics. NewYork: The Free Press.

McBride, Stephen. (2001). Paradigm Shift, Globalization and the Canadian State. Halifax: Ferwood.McCann, Michael. (1991). "Legal Mobilization and Social Reform Movements: Notes on Theory and

Its Applications." Studies in Law, Politics and Society 11, 225-254.McCann, Michael, and Helena Silverstein. (1993). "Social Movements and the American State: Legal

Mobilization as a Strategy for Democratization." In Gregory Albo, David Langille, and Leo Panitch(eds.), A Different Kind of State? Popular Powerand Democratic Administration. Don Mills: OxfordUniversity Press.

Newdick, Christopher. (1993). "Rights to NHS Resources after the 1990 Act" Medical Law Review1993,53-82.

Oliver, Dawn. (1987). "Is the Ultra Vires Rule the Basis of Judicial Review?" Public Law 1987, 543-569.

O'Suilivan, David. (1998). "The Allocation of Scarce Resources and the Right to Life Under theEuropean Convention on Human Rights." Public Law 1998, 389-393.

Rhodes, R.A.W. (1996). "The New Governance: Governing without Government." Political Studies44, 652.

Rice, James, and Michael Prince. (2000). Changing Politics of Canadian Social Policy. Toronto:University of Toronto Press.

Rosenberg, Gerald. (1991). The Hollow Hope: Can Courts Bring About Social Change. Chicago:University of Chicago Press.

166 SHELDRICK

Sheldrick, Byron. (1998). "Judicial Review and Judicial Reticence: The Protection of Political Ex-pression under the Common Law." Journal of Civil Liberties 3,191-206.

Shields, John, and B. Mitchell Evans. (1998). Shrinking the State, Globalization and Public Admin-istration 'Reform.' Halifax: Fernwood.

Cases

Associated Picture Houses v. Wednesbury Corporation [1948] 1 King's Bench 223 (Court of Appeal).Auton et al. v. British Columbia (Attorney General) [2000] British Columbia Supreme Court 1142.

Available at http://www.courts.gov.bc.ca/jdbo/o2Dtxt/sc/00/11 /11 /s00%2D1142.htm.Council of Civil Service Unions v. Minister for the Civil Service [1985] Appeal Cases 374 (House of

Lords).Eldridge v. British Columbia (Attorney General) [1997] 3 Supreme Court Reports 624 (Supreme

Court of Canada).Fogo (Town) v. Newfoundland [2000] 23 Administrative Law Reports (3d) 138.R. v. Cambridge Health Authority ex parte B [1995] 2 All England Law Reports 129 (Court of Appeal),ft y. Camden and Islington Health Authority ex parte K [2002] Q.B. 128 (Queen's Bench Division),ft v. East Sussex County Council, ex parte Tandy [1998] 2 All England Law Reports 769 (House of

Lords),ft v. Gloucestershire County Council ex parte Barry [1997] 2 All England Law Reports 1 (House of

Lords),ft v. North and East Devon Health Authority ex parte Coughlan [2000] 3 All England Law Reports

850 (Court of Appeal),ft v. North Derbyshire Health Authority ex parte Fisher [1997] 10 Administrative Law Reports 27

(Queen's Bench Division).ft v. Oakes [1986] 1 Supreme Court Reports 103 (Supreme Court of Canada).Fie Brown and Brock and Rentals Administrator [1945] 3 Dominion Law Reports 324 (Ont. High

Court and Court of Appeal).Singh v. Minister of Employment and Immigration [1985] 1 Supreme Court Reports 177 (Supreme

Court of Canada).St. Joseph Island Hospital Assn. v. Plummer Memorial Public Hospital (Dec. 30,1996; unreported

decision of the Ontario Court of General Division).

Byron Sheldrick is an Associate Professor of Politics at the University of Winnipeg in Canada. Hisresearch and teaching interests include the restructuring of social policy, interest groups and socialmovements, and the intersection of law and politics. Prior to joining the University of Winnipeg,Prof. Sheldrick taught in the Department of Law at Keele University in the United Kingdom.