Health Service – rationing – resources In setting eligibility criteria for infertility treatment, a health authority was legally entitled to use age as a criterion when faced with budgetary restrictions; and was not obliged to provide the service on demand ‘regardless of the financial and other concerns of the authority’. The authority had acted on medical advice that in-vitro fertility treatment was generally less effective for women over the age of 35 and it was not for the courts to impose the appropriate cut-off point.

In this case the Court of Appeal were asked to adjudicate on whether the respondent council could lawfully determine that a homeless person with a history of drug use and suffering from anxiety and depression was not vulnerable within the meaning of s.189(1)(c) of the Housing Act 1996. The appellant, S, original application for housing to the council had included a report from his doctor detailing his vulnerability; the local authority had, following advice from their medical officer, concluded that he was not vulnerable and therefore not in priority need. The medical officer had not examined S but had seen the report of S’s doctor. A reviewing officer upheld the decision having taken into consideration the authority’s medical officer’s opinion, S’s medical complaints and two reports from S’s doctor, which warned of the negative impact homelessness would have on S’s health, namely an adverse impact on his obesity, a deterioration in his mental health and the possibility of him reverting to illegal drug use. The second report from S’s doctor also commented on problems caused by S’s excessive smoking. Despite these complaints the reviewing officer concluded that there was no medical or social factors that would inhibit S from fending for himself and therefore he was not vulnerable. S appealed, unsuccessfully.

S’s challenge to the Court of Appeal on the basis that the authority had not taken into consideration the risk of relapse, as a recovering drug addict he was vulnerable for “some other special reason” or the impact it would have on his psychiatric condition. Further that the authority had not taken into consideration all the available medical evidence. He also challenged the reliance on the authority’s medical advisors report given that he had not been examined by him, nor had the advisor consulted with S’s doctor or been given the opportunity to comment on S’s doctor’s second report.

The Court of Appeal highlighted that the authority had made reference to S’s past drug dependency and a risk of relapse but had concluded that he had previously sought therapy to deal with this problem and that such support could be available again. In addition the Court believed the authority had taken into consideration the impact homelessness might have on S’s depression and anxiety. The authority were entitled, on the facts, to conclude that the risks were not substantial and that therefore he was not vulnerable for some other special reason because he was not less able to fend for himself than an ordinary person so that injury or detriment would have resulted where a less vulnerable person would have coped without harmful effects, R v Waveney DC Ex p Bowers (1983) QB 238 CA (Civ Div), R v Camden LBC Ex p Pereira (1999) 31 HLR 317 CA (Civ Div) and Osmani v Camden LBC (2004) EWCA Civ 1706, (2005) HLR 22 applied. Ultimately the issue of vulnerability was a decision for the local authority and they were entitled to prefer the opinion of its adviser over those of S’s doctor. The Court of Appeal commented that the authority was likely to be aware when making their decision that their advisor had not examine S or spoken with his doctor. Further it held that the Act did not require for the authority to refer every report for evaluation and particularly where subsequent reports did not offer fundamental new evidence, as was the case in this instance.

Comment: It would appear therefore that for challenges of this nature to succeed applicants will need to show that an authority acted in a way that would be deemed wednesbury unreasonable when referring matters to their medical advisors and relying on their subsequent advice.

Leave a Reply

Your email address will not be published.