Courts and Allocative Decisions

This week, both Dutch media (here and here) and the Guardian in the UK (here, see also their last month's story here) had reports on the impact of financial constraints on the chances of cancer patients to receive expensive, but highly effective, new drugs. It seems that a whole new generation of cancer drugs is arriving on the market, offering vastly improved perspectives for patients, but at a price. It also seems that, as governments have largely delegated spending decisions to hospitals and insurers, pressure on specialists 'on the ground' has increased dramatically. New data now show significant differences in the levels of provision of these new drugs among hospitals and even among countries (the Netherlands scoring particularly weak internationally). Against this background, it is unsurprising that patients are beginning to turn to the courts for protection, as has now happened in the UK.

Delegation of authority to specialists and market forces makes sense in this area, but the questions now raised have such an important political dimension that it seems parliaments should get involved. General principles applicable to the allocation of life saving medicine should be decided upon explicitly and visibly, by democratically accountable legislatures.

The alternative is for the courts to get involved. Judicial review of allocative decisions is of course not new, but remains a very difficult task. For a helpful overview of earlier rulings (UK) and the problems encountered therein, you could have a look at this online paper by Keith Syrett of Norwich Law School (2000), entitled "Of resources, rationality and rights: emerging trends in the judicial review of allocative decisions". A comparative study of methods used in judicial decisions on the allocation of resources could probably be very helpful. It's easy to think of some of the issues involved: Should courts treat 'allocative decisions' differently from other executive action? If so, how could 'allocative decisions' be defined? Should one focus on the claimed motives (financial constraints) or rather on the redistributive impact of decisions? Answers, of course, are a bit more complicated.

Update 30/11/05: Have a look at new research reported in The Guardian.