Medical Treatment: Decisions and the Law

17. Access to Healthcare


There are limited routes of challenge to service provision decisions except judicial review. There is a right to complain about some health service decisions to the Parliamentary and Health Service Ombudsman, but there is no merits-based appellate jurisdiction over decisions about healthcare provision. There are some hints of change over procedural rights. For example, the Special Educational Needs Tribunal is running a pilot scheme allowing tribunals to make recommendations about the health elements of integrated Education, Health and Care Plans for children with special needs. The Care Act 2014 provides a power for an appellate mechanism for social care decisions, albeit in a section not yet in force. The Supreme Court has given permission to appeal Re: N concerning the extent of the Court of Protection’s role in decision- making about service provision.

However, these are  only  possible  changes  and  early  substantive  change  is unlikely. There are difficulties of practicality and principle in creating individual rights to a merits-based challenge to decisions about healthcare provision. This is a gap which judicial review might fill, but only in part and with difficulty given its focus on lawfulness, limits to legal aid and the costs risk faced by an individual claimant.

What is likely is that the separation of powers and duties within the NHS and, arguably, between state commissioning and private sector provision will lead to greater attention to legal duties and on the organisation and financing of healthcare. The idea of a single entity called ‘the NHS’ is becoming less of a reality, and decision-making is becoming less opaque.


  • A Introduction  17.1
  • B The National Health Service  17.2
  • C Statutory duties to provide healthcare 17.3
  • The Secretary of State  17.3
  • NHS England and clinical commissioning groups 17.4
  • Reasonable requirements in England and Wales 17.5
  • Which CCG is responsible?  17.6
  • Services for people from other countries and other parts of the UK 17.7
  • The NHS Constitution  17.8
  • The role of NICE in approving drugs and other treatments 17.9
  • Individual decision-making by CCGs  17.10
  • D Court decisions about access to healthcare 17.11
  • Will a court require doctors or NHS bodies to provide treatment? 17.11
  • What is the applicable jurisdiction?  17.12
  • Will a court require that money be spent on a particular treatment? 17.13
  • Human rights  17.14
  • Policy and guidance challenges 17.15
  • Equality law  17.16
  • Exceptionality 17.17
  • Understanding the evidence  17.18
  • E Conclusion  17.19

updates and appendices will be provided for this chapter in due course

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