Who should we treat? Rights, Rationing and Resources in the NHS

By Christopher Newdick , Oxford University Press , 2005 , 2nd ed . HB £55 , 278 pp. ISBN HB 0-19-926417-1 ; PB £24.99 , 278 pp. ISBN PB 0-19-926418-X The first edition of this valuable book provided a overview of the legal framework around, and the organizational structures of the NHS. Along the way, the rights of patients within the system were explained, and commentary provided on inevitable conflicts that occur between efficiency and equity. This new edition covers the raft of changes affecting the NHS that have occurred in the intervening decade, ranging from the new bodies responsible for oversight of NHS performance, to the implications of the Human Rights Act and delineation of NHS duties towards patients treated outside the UK. In addition, the structure of the book has been reorganized, and there is a significant amount of new material. In setting out to answer the question, Who should we treat?, Newdick takes the reader on a comprehensive journey through the NHS and its regulatory framework. The book starts with description of the problem faced by all healthcare systems that of rationing services or prioritizing amongst needs. Having scoped the problem, he then goes on to chart the evolving context in which rationing decisions occur within the NHS. Chapter 3 spells out the three levels of decision-making within the NHS (government, health authority and clinician) and how rationing can occur at each of these levels. This chapter charts the demise of the original internal NHS markets and the transition to the increasingly complex structures introduced since the early nineties. The themes of this chapter are echoed in chapter 4, which describes the organization of the NHS and the effects of the diffusion of power, market competition, targets and incentives. The conclusion from these two chapters is that there is neither policy nor mechanisms within the NHS for ensuring that resource allocation decisions are made in coherent, consistent and transparent ways that treat people equally. In the absence of central guidance on priority setting, what grounds are there for making decisions about who to treat? This is the heart of the book, in which Newdick details the legal framework that exists to support patients‘ claims to services and the obligations that exist to provide these. Decisions about providing, or not providing care can be challenged in the courts, and in turn, the courts are increasingly willing to scrutinize these decisions to ensure that the discretion that lies with service providers has been exercised in reasonable and proportionate ways. This marks an important shift in power towards individuals and away from authorities and professionals. Chapter 6, on standards of care and medical negligence, provides a very clear and comprehensive account of clinician liability and informed consent, including the duty of disclosure when things go wrong and the duty to tell patients of treatments that they will not be offered. Just as decision-making can occur at a number of levels in the NHS, so liability may also be the responsibility of individuals or systems. Chapter 7 examines the liability of health authorities and government, which have been highlighted in the aftermath of the Bristol enquiry. The chapter clarifies the distinctions between policy and operations and explains how these play out in terms of accountability and negligence. In the final part of the book, Newdick discusses recent developments in NHS governance and accountability, and in treating patients outside the NHS. Chapter 8 is a very readable account of the procedures developed within the NHS to regulate its governance. Operating at a number of levels, these bodies have largely come into existence as responses to Bristol and Shipman. The chapter includes an explanation of the role of the National Institute for Clinical Excellence in resource allocation, as well as describing the four bodies that have come into existence with responsibility for oversight of NHS performance. This is very helpful to those feeling overwhelmed by the plethora of acronyms in this area. In chapter 9, Newdick describes the evolution of care provided to NHS patients outside the NHS, including care provided in other European nations. The analysis of the rights of patient and EU member states is fascinating. This book is invaluable to anyone who wants to understand the role of law in determining who is entitled to treatment, and of what standard. The book develops a persuasive argument, that while the law has an important role to play in providing a framework for the decision-making processes of resource allocation, and in providing a remedy for inadequate standards and services, the difficult decisions about priority setting should be made by elected representatives rather than by the courts. However, in the absence of central leadership or agreed processes, the courts are filling the vacuum. The danger is that, with increasing emphasis upon human rights, we may end-up with a framework unduly skewed towards individual claims at the cost of coherent, rational, transparent and accountable policy that is fair to all of those entitled to NHS care. I recommend this book to policy makers, NHS managers of all levels, health service providers, clinicians and anyone interested in increasing their understanding of the NHS. It is an absorbing snapshot of the NHS responding to its current challenges, and a scholarly account of the relationship between law and health care in the UK

Demise · Health care · Health care rationing · Law and economics · Political science · Public relations · Rationing · Sociology · Health Services Management and Policy · Healthcare Policy and Management · History · Law · Philosophy · Public Administration

• Direito à saúde, recursos escassos e equidade

  Open Access•Octávio Luiz Motta Ferraz, Fabiola Sulpino Vieira•Dados•2009

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