Justifying justiciability: healthcare resource allocation, administrative law and the baseline judicial role

Abstract

A long-standing problem in United Kingdom law concerns the proper relationship between judicial review and healthcare resource allocation. Traditionally, decisions concerning healthcare resource allocation are non-justiciable. This position has already been departed from in the positive law, but few within the academic literature have discussed the theoretical justification for such a departure. This article draws upon the literature on public law theory and makes three theoretical arguments in favour of this departure. First, the doctrine of non-justiciability is an inflexible – and thus inappropriate – form of judicial restraint. Second, one cannot sensibly distinguish cases with an allocative impact (which are justiciable) from decisions concerning healthcare resource allocation. The latter therefore should not be non-justiciable. Third, the ultra vires theory entails that decisions concerning healthcare resource allocation should be both justiciable and consistent with the requirements of the rule of law – such that these decisions must be subject to the possibility of both procedural and rationality review. This establishes a baseline judicial role in healthcare resource allocation.