Alex RKIn a decision handed down on 9 April 2020, Chamberlain J gave some important observations about the lawfulness of the allocation of scarce hospital resources in University College London Hospitals NHS Foundation Trust v MB [2020] 882 (QB).
The case arose because the Trust sought possession of a bedroom from a woman called MB in a hospital that it runs (where she had been since February 2019), on an urgent basis: “because the COVID-19 pandemic meant that the bedroom is urgently needed for other patients; and because in any event it is contrary to MB’s interests to remain in the Hospital, where she is at increased risk of contracting COVID-19.” The Trust, the claimant, contended that the woman could be safely discharged to specially adapted accommodation provided by the local authority, with a care package, which the Trust considered more than adequate to meet her clinical and other needs. Chamberlain J had to decide whether to grant the Trust an injunction on an interim basis to require MB to leave the hospital.
The facts of the case, and in particular MB’s medical history, are complex, and I will not set them out here. For present purposes, it is of importance that MB did not seek to defend the claim on the basis that it was irrational of the Trust to cease to provide her with inpatient care, and hence to require her to leave (and the judge held that any such contention would be unsustainable).
Rather, MB argued that requiring her to leave would breach her rights under Article 3 and Article 8 ECHR (read independently, and together with Article 14), as well as amounting to breaches of the Equality Act 2010. Chamberlain J started with Article 3 ECHR:
So far as Article 3 ECHR is concerned, Mr Holland’s submissions amount to this: if it can be established that, unless her concerns are addressed, discharge will precipitate suicide, self-harm or extreme distress rising to the level of severity necessary to qualify as inhuman or degrading treatment within the meaning of Article 3 ECHR, the Hospital is legally precluded from discharging her until those concerns are met, even if her concerns are, from an objective clinical point of view, unreasonable and unwarranted. I cannot accept that proposition.
The reasons Chamberlain J gave for rejecting her contention are important, and merit setting out largely in full:
54 It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.
55 In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even ceasing to provide in-patient care to one of them to leave will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life. A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B. This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”. Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds. In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.
56 The present situation does not involve a comparison of the needs of two identified patients. But the decision to withdraw permission for MB to remain in the Hospital is still a decision about the allocation of scarce public resources. Decisions of this kind are a routine feature of the work of hospitals and local authorities, even when there is no public health emergency. The fact that we are now in the midst of the most serious public health emergency for a century is likely to accentuate the need for such decisions. The absence of evidence identifying a specific patient or patients who will be disadvantaged if MB remains where she is does not mean that such patients do not exist. It is important when considering human rights defences in cases of this sort not to lose sight of that.
57 Analytically, the reason why a decision to require a patient to leave a hospital is unlikely to infringe Article 3 ECHR is because it is based on a prior decision not to provide in-patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Article 3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one.
In relation to Article 8:
the difficulties facing MB’s argument are even more pronounced. In R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, [2011] HRLR 36, Lord Brown said this at [16]:
“the clear and consistent jurisprudence of the Strasbourg Court establishes ‘the wide margin of appreciation enjoyed by states’ in striking ‘the fair balance … between the competing interests of the individual and of the community as a whole’ and ‘in determining the steps to be taken to ensure compliance with the Convention’, and indeed that ‘this margin of appreciation is even wider when … the issues involve an assessment of the priorities in the context of the allocation of limited state resources’”.
Even though the decisions to cease to provide in-patient care to MB and to require her to leave plainly interfere with MB’s right to respect for private and family life, the evidence adduced by the Claimant amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment. Bearing in mind the broad discretionary area of judgment applicable to decisions of this kind, there is no prospect that MB will establish the contrary.
Finally, in relation to Article 14:
60 Nor does reliance on Article 14, read with Article 3 or Article 8, take matters any further. The decision to decline in-patient care to MB does not discriminate against her on the ground of her disabilities. The Hospital has treated her in the same way as a patient with different disabilities or with none: it has determined whether to continue to offer her in-patient care on the basis of her clinical need for such care. To the extent that this is itself discrimination against those, like MB, whose disabilities make them perceive a need for things (such as a rainwater canopy outside the front door) for which there is in fact no objective need, the discrimination would be justified even outside the context of a public health emergency. In the context of such an emergency, there is no prospect that a challenge based on Article 14 in these circumstances could possibly succeed.
MB also relied upon the Equality Act 2010, but to no avail:
61. As for MB’s arguments under the 2010 Act, these too are without merit. Compliance with the duty in s. 149 of the 2010 Act [the public sector equality duty] is a matter of substance, not form. The fact that there has been no express reference to that duty does not matter. What matters is whether the factors required to be considered have been considered, insofar as they are relevant to the function in question. Here, the function is that of deciding whether to cease to provide in-patient care to MB. That decision was taken on the basis of the careful assessment of Dr Christofi and other members of the multi-disciplinary team. The assessment paid the fullest possible attention to the complex needs arising from MB’s physical and mental disabilities. The contrary is not arguable. To the extent that it is said that the decision discriminates against MB on the ground of her disabilities contrary to s. 29 of the 2010 Act, any such discrimination is justified for the same reasons as given in relation to Article 14. To the extent that the complaint is one of failure to make reasonable adjustments, the history demonstrates that Dr Christofi and his team have made every possible reasonable adjustment. The further adjustments to the care package now sought are, for the reasons I have given, not reasonable. There is therefore no arguable claim under the 2010 Act.
It was therefore clear, the judge held, that even on an interim basis, MB had no sustainable public law challenge (and that, had she sought to judicially review the Trust’s decision, he would have refused permission and certified her claim totally without merit). He therefore granted the injunction,
Comment
There is, at present, much discussion in relation to the potential for resources within hospitals to become sufficiently stretched that decisions may have to be made that clearly and expressly proceed on utilitarian grounds: i.e. expressly comparing the relative need of one patient with another for (for instance) a bed in intensive care, or a ventilator. A good overview of the ethical issues can be found in this briefing paper prepared by the Essex Autonomy Project, and a resource for considering issues in detail is this site maintained by the Centre for Law, Medicine and Life Sciences at the University of Cambridge.
This judgment is a good reminder that considerations of the allocation of scarce resource are ever-present even absent the current situation. It also lays out clearly both the steps for Trusts would need to take to ensure that utilitarian decisions that may have to be made in future are lawful, and also the hurdles that will lay in the way of those who may seek to challenge such decisions.
It should, finally, be emphasised that to the extent that current concerns about the impact of COVID-19 on clinical resources are leading decisions about advance care planning to be done to, not with people, this is wrong: see my video here.
