FROM WEDNESBURY UNREASONABLENESS TO ACCOUNTABILITY FOR REASONABLENESS: HOW THE COURTS HAVE CONTRIBUTED TO MAKING RATIONING IN THE NHS MORE EXPLICIT

Abstract

Over the last decades, rationing of medical treatment in the National Health Service (NHS) has moved from implicit to being increasingly explicit about what is being denied and about the procedures and reasons for such decisions. This article argues that the courts have had an important role in this process. By applying a heightened scrutiny of rationing decisions, courts have forced health authorities to make better-informed decisions and to take procedural justice more seriously to comply with, respond to and avoid judicial review. The analysis in this article reveals that litigation has contributed to incremental, but significant and enduring, changes in a social policy. It also offers insights to the paradoxes of judicial accountability in health care policies.