Resource AllocationResource AllocationEthics and LawEthics and Law

Some thoughts for starters…Some thoughts for starters…

You can’t put a price on a human You can’t put a price on a human life…life…

There is a right to health…There is a right to health…

There is a right to health care…There is a right to health care…

Problems with the right to health and Problems with the right to health and healthcare…healthcare…

Everything has a price (or at least a cost)…Everything has a price (or at least a cost)…

Can a right to health exist if there is no Can a right to health exist if there is no reciprocal obligation on a doctor to keep reciprocal obligation on a doctor to keep someone healthy (positive vs negative rights)someone healthy (positive vs negative rights)……

Therefore, if there is a right to healthcare, it Therefore, if there is a right to healthcare, it is limited…is limited…

Limits on the right to health Limits on the right to health care…care…

If each citizen of a community has a right If each citizen of a community has a right to healthcareto healthcare

What happens when they conflict? What happens when they conflict? (Harris - Survival Lottery)(Harris - Survival Lottery)

Can I rightfully claim an organ from a healthy Can I rightfully claim an organ from a healthy person?person?

What if two people need a donated kidney?What if two people need a donated kidney?

Even where our rights don’t conflict, there Even where our rights don’t conflict, there will always be limits in the form of will always be limits in the form of available resources to the degree that our available resources to the degree that our ‘rights’ may be satisfied:‘rights’ may be satisfied:

Limited ResourcesLimited Resources

Resources are indefinitely limitedResources are indefinitely limited There is a limit, but it is not always There is a limit, but it is not always

obvious where that limit isobvious where that limit is

Scarcity of resources can be Scarcity of resources can be radical or comparativeradical or comparative

Radical: not enough for everyoneRadical: not enough for everyone Comparative: not enough to treat Comparative: not enough to treat

everyone noweveryone now

What limits resources…?What limits resources…?

Financial ConstraintsFinancial Constraints No money to spendNo money to spend Unfair distribution of what money there isUnfair distribution of what money there is

Increased supply and demandIncreased supply and demand Improved treatments and technology allows Improved treatments and technology allows

medicine to treat more disease.medicine to treat more disease. Innovations are frequently brought ‘to the market’ Innovations are frequently brought ‘to the market’

by biotechnology/ pharmaceutical companies who by biotechnology/ pharmaceutical companies who need to generate profit from their investment – need to generate profit from their investment – Herceptin example.Herceptin example.

People live longer and People live longer and expect expect to live longerto live longer With longer lives the nature of the treatment to be With longer lives the nature of the treatment to be

delivered changes over time.delivered changes over time.

Types of distribution problemsTypes of distribution problems

Macro-allocationMacro-allocation Department of HealthDepartment of Health HSEHSE

Fighting for and then apportioning its budgetFighting for and then apportioning its budget HospitalsHospitals

Micro-allocationMicro-allocation Deciding between patientsDeciding between patients

Macro-allocation of resourcesMacro-allocation of resources GlobalGlobal

Clear problems in terms of equity:Clear problems in terms of equity: Insufficient resources for essential medicines e.g. anti-Insufficient resources for essential medicines e.g. anti-

retroviralsretrovirals Doctors often have to train abroadDoctors often have to train abroad Staff are often lured abroadStaff are often lured abroad

ResponsesResponses Individual – is there a moral duty to a country?Individual – is there a moral duty to a country? Government aid - may be ‘strings attached’ with regard to Government aid - may be ‘strings attached’ with regard to

foreign policies.foreign policies. Suppliers (esp. Drug Companies)Suppliers (esp. Drug Companies)

Do drug companies have any moral obligationDo drug companies have any moral obligation Issues for this country?Issues for this country?

NationalNational Are some regions favoured over others?Are some regions favoured over others? Does socio-economic status affect access to healthcare?Does socio-economic status affect access to healthcare?

How to macro-allocate…How to macro-allocate… Need based analysisNeed based analysis

How is need defined? How is need defined? How are different needs evaluated / How are different needs evaluated /

compared?compared? Does kidney dialysis count for more or less than Does kidney dialysis count for more or less than

a ruptured appendix?a ruptured appendix? Does a fractured hip in an elderly person count Does a fractured hip in an elderly person count

for more or less than a young adult?for more or less than a young adult?

How to assess Value of Life.How to assess Value of Life.

Problems…Problems…

A range of people have input into the A range of people have input into the decisions that are made:decisions that are made: Medical professionalsMedical professionals ManagersManagers EconomistsEconomists PoliticiansPoliticians Public opinionPublic opinion Lobby groupsLobby groups MediaMedia

Each group will have its own priorities and Each group will have its own priorities and bias.bias.

Some ways of deciding…Some ways of deciding…

Cost : benefit of treatmentCost : benefit of treatment

Avoiding sufferingAvoiding suffering As opposed to say lifestyle treatmentsAs opposed to say lifestyle treatments Example of sildenafil (Irish & UK experiences on Example of sildenafil (Irish & UK experiences on

limiting its use)limiting its use)

Prolonging lifeProlonging life Role of clinical data: NICE (in UK) and herceptin & Role of clinical data: NICE (in UK) and herceptin &

beta interferonbeta interferon

Private healthcarePrivate healthcare

Opinion PollOpinion Poll Oregon exampleOregon example

Other countries’ approachesOther countries’ approaches

OregonOregon People were polled for their opinion on an adaptable, People were polled for their opinion on an adaptable,

prioritised list of available treatments -on the Medicare prioritised list of available treatments -on the Medicare systemsystem

Problems: Problems: List inflation List inflation List can fluctuate depending on the state of the Oregon List can fluctuate depending on the state of the Oregon

budgetbudget New ZealandNew Zealand

National Advisory Committee on Health and DisabilityNational Advisory Committee on Health and Disability Guidelines on how restricted, publicly funded resources Guidelines on how restricted, publicly funded resources

are to be allocatedare to be allocated e.g. End-stage renal dialysis is not for over-75se.g. End-stage renal dialysis is not for over-75s Are the tests subjective: serious disease or disability likely Are the tests subjective: serious disease or disability likely

to affect survival are grounds for exclusion.to affect survival are grounds for exclusion.

Other countries’ approachesOther countries’ approaches UK - National Institute for Clinical ExcellenceUK - National Institute for Clinical Excellence

Designed originally to reduce ‘postcode prescribing’Designed originally to reduce ‘postcode prescribing’ A consequence of regional health authorities having A consequence of regional health authorities having

the power to decide what treatments they would and the power to decide what treatments they would and would not prescribe.would not prescribe.

Decisions are made on the basis of pure Decisions are made on the basis of pure clinical need and clinical efficiency.clinical need and clinical efficiency.

Still, resource issues exist. Still, resource issues exist. Treatment A has a better side-effect Treatment A has a better side-effect

profile, but is (a) no more efficacious and profile, but is (a) no more efficacious and (b) ten times more expensive than B. (b) ten times more expensive than B. What to do?What to do?

NICE uses QALYsNICE uses QALYs The cost per QALY is an important determining The cost per QALY is an important determining

factor: a drug costing >£25-35K/QALY would factor: a drug costing >£25-35K/QALY would require stronger reasons to be recommended require stronger reasons to be recommended than one costing £5K/QALYthan one costing £5K/QALY

When NICE makes a recommendation it is When NICE makes a recommendation it is binding on purchasersbinding on purchasers, but , but notnot on practitioners on practitioners

Legal Issues and Macro-Legal Issues and Macro-allocationallocation

Where guidelines exist, a greater legal duty Where guidelines exist, a greater legal duty may exist:may exist: A doctor might be required to show why he/she did A doctor might be required to show why he/she did

not follow guidelinesnot follow guidelines

What if the guidelines themselves are wrong? What if the guidelines themselves are wrong? – – judicial reviewjudicial review

Can one use law to force a government to Can one use law to force a government to allocate resources a certain way? allocate resources a certain way? – – judicial reviewjudicial review Generally not… “division of powers”Generally not… “division of powers”

Legal action can have its uses:Legal action can have its uses: Money Money maymay appear all of a sudden; third party donors appear all of a sudden; third party donors

Judicial reviewJudicial review System by which courts control and System by which courts control and

police the legality of government police the legality of government action.action.

Court may demand reasons from Court may demand reasons from health Authority for decisions they are health Authority for decisions they are forced to make.forced to make.

Claims for JR may be brought against Claims for JR may be brought against statutory bodies under 3 heads:statutory bodies under 3 heads:

1.1. IllegalityIllegality

2.2. IrrationalityIrrationality

3.3. Procedural improprietyProcedural impropriety

Judicial reviewJudicial review

R v Cambridge R v Cambridge ex parteex parte B (1995) B (1995) 23BMLR 1 (CA)23BMLR 1 (CA)

B= 10yo girl with NHLB= 10yo girl with NHL Relapsed following chemo and developed AMLRelapsed following chemo and developed AML Doc proposed palliative care – 8 weeksDoc proposed palliative care – 8 weeks Father sought more favourable opinion and tried Father sought more favourable opinion and tried

to get funding for alternative treatment.to get funding for alternative treatment. Court should not investigate actual decision Court should not investigate actual decision

but rather its legalitybut rather its legality Court should not make decision about how a Court should not make decision about how a

limited budget is spent.limited budget is spent. Court will only be concerned with resource Court will only be concerned with resource

allocation if the allocation is irrational.allocation if the allocation is irrational.

Non-provision of servicesNon-provision of services R v Sec of State for Social Services ex p Hincks R v Sec of State for Social Services ex p Hincks

[1980]1BMLR 93[1980]1BMLR 93

New orthopaedic unit planned for Birmingham.New orthopaedic unit planned for Birmingham. Approved in 1971Approved in 1971 Postponed in 1973Postponed in 1973 Abandoned in 1978Abandoned in 1978

Alleged: since need was acknowledged Sec of Alleged: since need was acknowledged Sec of State failed to provide comprehensive system as State failed to provide comprehensive system as required.required.

Held: Act may not be used to impose an Held: Act may not be used to impose an ABSOLUTE duty to provide services irrespective of ABSOLUTE duty to provide services irrespective of economic decisions taken at national level.economic decisions taken at national level.

Non-provision of servicesNon-provision of services

See also R v N&E Devon HA ex p See also R v N&E Devon HA ex p Coughlan [1999]Coughlan [1999]

C was told she was being moved from a nursing C was told she was being moved from a nursing home to another, but that this would be her home home to another, but that this would be her home for life.for life.

22ndnd hospital was expensive and they tried to move hospital was expensive and they tried to move her again.her again.

Could HA go back on its promise?Could HA go back on its promise?

Confirmed the view that the duty is not absoluteConfirmed the view that the duty is not absolute But the more specific the promise the more it is But the more specific the promise the more it is

enforceableenforceable Substantive right to enforce the promise based on Substantive right to enforce the promise based on

principle of promissory estoppel.principle of promissory estoppel.

R v North Derbyshire HA R v North Derbyshire HA ex parteex parte Fisher [1997] 8 MLR 327 (QBD)Fisher [1997] 8 MLR 327 (QBD)

Patients with MS. ? Patients with MS. ? IFN – treatment IFN – treatment refusedrefused

Questions asked at JR:Questions asked at JR: Was the policy wrt IFN lawfulWas the policy wrt IFN lawful Was a blanket ban appropriateWas a blanket ban appropriate

Judge described explanations as Judge described explanations as disingenuousdisingenuous

Refusal to treat was overturned and referred Refusal to treat was overturned and referred back to HA.back to HA.

WalkerWalker (1987): attempted to force hospital (1987): attempted to force hospital to perform postponed surgery (where to perform postponed surgery (where surgery postponed for resources reasons) surgery postponed for resources reasons) (UK)(UK)

shortage of ICU nursesshortage of ICU nurses

Held – no immediate danger and op would Held – no immediate danger and op would have proceeded if condition deterioratedhave proceeded if condition deteriorated

Sinnott Sinnott (2002): Courts won’t tell (2002): Courts won’t tell governments how to spend money (Irl).governments how to spend money (Irl).

Micro-allocationMicro-allocationdeciding between individualsdeciding between individuals

Decisions to treat individuals may not only be Decisions to treat individuals may not only be dependent on resources factors:dependent on resources factors: Patient autonomyPatient autonomy Availability of non-resource materials, such as organsAvailability of non-resource materials, such as organs

Some decisions may seem instinctiveSome decisions may seem instinctive Treat the person who is in the greatest pain?Treat the person who is in the greatest pain? Treat the person who can realistically be savedTreat the person who can realistically be saved

These decisions may pass judgement on the These decisions may pass judgement on the perceived Quality of Life of the ‘untreated’ perceived Quality of Life of the ‘untreated’ person.person.

Assessment of Need as a quantum…Assessment of Need as a quantum…

One definition of need is “when an One definition of need is “when an individual has an illness or disability for individual has an illness or disability for which there is an effective and acceptable which there is an effective and acceptable treatment”treatment”

But need may be qualified further by But need may be qualified further by asking who ‘needs’ a treatment more:asking who ‘needs’ a treatment more:

1.1. The urgency, intensity and importance of The urgency, intensity and importance of the needthe need

2.2. The amount of what is neededThe amount of what is needed3.3. The capacity of the person to benefit from The capacity of the person to benefit from

what is neededwhat is needed

Treatment outcomes…Treatment outcomes…

Who will live longest with treatment?Who will live longest with treatment?

We each have the ‘rest of lives’ before We each have the ‘rest of lives’ before us.us.

John Harris has described how those of us who wish to John Harris has described how those of us who wish to continue living has something each of us values, continue living has something each of us values, namely ‘the rest of our lives. namely ‘the rest of our lives.

It varies from one person to another but none of us It varies from one person to another but none of us knows the date of our death and so for every one of us knows the date of our death and so for every one of us ‘the rest of our lives’ is of indefinite duration. Suffering ‘the rest of our lives’ is of indefinite duration. Suffering from a terminal disease or in perfect health, each of us from a terminal disease or in perfect health, each of us has the rest of our lives before us.has the rest of our lives before us.

Mr Justice Mars Jones in R v CarrMr Justice Mars Jones in R v Carr

‘…‘…However gravely ill a man may be… he is However gravely ill a man may be… he is entitled in our law to every hour… that God has entitled in our law to every hour… that God has granted him. That hour or hours may be the most granted him. That hour or hours may be the most precious and important hours of a man’s life. precious and important hours of a man’s life. There may be business to transact, gifts to be There may be business to transact, gifts to be given forgiveness to be made, 101 bits of given forgiveness to be made, 101 bits of unfinished business, which have to be concluded’unfinished business, which have to be concluded’..

RvCarr- Unreported. The Sunday Times 30th November 1986. RvCarr- Unreported. The Sunday Times 30th November 1986. Quoted in Mason McCall Smith Law and Medical Ethics (7th Quoted in Mason McCall Smith Law and Medical Ethics (7th Ed) Oxford University Press 2006.Ed) Oxford University Press 2006.

Treatment OutcomesTreatment Outcomes Who will live longest with treatment? Who will live longest with treatment?

Will discriminate against the older person.Will discriminate against the older person. May discriminate against those who have underlying May discriminate against those who have underlying

conditions that are nothing to do with the condition conditions that are nothing to do with the condition being considered for treatment –double jeopardy.being considered for treatment –double jeopardy.

Does the fact that both patients stand to lose the same Does the fact that both patients stand to lose the same thing (thing (i.e. i.e. their lives mean that in fact they should be their lives mean that in fact they should be treated equally).treated equally).

Who will respond best to treatment?Who will respond best to treatment?

What about resource allocation where there What about resource allocation where there is no real ‘treatment’ being proposed?is no real ‘treatment’ being proposed?

Social cost-benefit analysis …Social cost-benefit analysis …

Who will contribute the most to Who will contribute the most to society…?society…?

How do we measure ‘contribution’?How do we measure ‘contribution’?

Who ‘deserves’ to be treated…?Who ‘deserves’ to be treated…?

Rewarding hospitals that do well at Rewarding hospitals that do well at harvesting organs with first-choice harvesting organs with first-choice when organs come up for when organs come up for transplantation…transplantation…

Numbers of children…Numbers of children…

Who ‘deserves’ to be treated…?Who ‘deserves’ to be treated…?

Those who contribute to their own downfallThose who contribute to their own downfall e.g. smokers & CABGe.g. smokers & CABG Doctors as dealers in punishment?Doctors as dealers in punishment? Do the virtuous get a double reward under schemes Do the virtuous get a double reward under schemes

such as thissuch as this

Moral quality of the patientMoral quality of the patient

““Good innings” argumentsGood innings” arguments Idea that you have lived “long enough”Idea that you have lived “long enough” But does a lifetime of paying taxes warrant better But does a lifetime of paying taxes warrant better

treatment? treatment?

QALYs - Quality Adjusted Life YearsQALYs - Quality Adjusted Life Years

A common mechanism for working out who to treatA common mechanism for working out who to treat Term comes from Health Economics, rather than EthicsTerm comes from Health Economics, rather than Ethics

Based on the idea of questioning people about how they Based on the idea of questioning people about how they see certain disorders. see certain disorders.

Asked to rank living with certain Asked to rank living with certain conditions/disabilites/symptomsconditions/disabilites/symptoms

1 = Completely normal life1 = Completely normal life 0 = Death0 = Death Multiplied by the number of years that the person can be Multiplied by the number of years that the person can be

expected to liveexpected to live

The more QALYs a given treatment will produce - having The more QALYs a given treatment will produce - having regard to the cost of that treatment - the clearer the regard to the cost of that treatment - the clearer the indication as to whether that treatment should be given to indication as to whether that treatment should be given to that particular personthat particular person

Problems with QALYsProblems with QALYs

Assessment might not take Assessment might not take enough consideration of how a enough consideration of how a person who actually person who actually hashas the the condition etc… might feelcondition etc… might feel

May therefore involve value May therefore involve value judgment about how people are judgment about how people are likely to think rather than how likely to think rather than how they actually they actually will will think.think.

Problems with QALYsProblems with QALYs

Numerical bias: two years of life Numerical bias: two years of life for one person is ‘better’ than one for one person is ‘better’ than one year of life for two people year of life for two people (because cost of treating them is (because cost of treating them is higher).higher).

May discriminate:May discriminate: ElderlyElderly People with conditions that are cheaper to treatPeople with conditions that are cheaper to treat Those with pre-existing conditionsThose with pre-existing conditions