Priority Setting, Judicial Review, and Procedural Justice

Abstract

Abstract The justification for the judicial review of priority-setting decisions in the NHS is premised upon a distinction between substantive policy decisions and matters of procedural fairness, with courts themselves perceiving their function as restricted primarily to assessments of procedure. This approach finds normative ground in the ‘procedural turn’ in the philosophical literature on justice in health, in particular in the influential idea of ‘Accountability for Reasonableness’. However, this chapter will argue that relying on the substance/procedure distinction to identify the appropriate role for the courts in the control of allocative decisions in health care will attract to judicial review a series of concerns raised in the philosophical literature with regard to the idea of securing just priority setting through procedural means.