BACKGROUND PAPER Funding Pressures In The NHS: An

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BACKGROUND PAPERFunding pressures in the NHS: an ethicalresponseKatharine Wright, Assistant Director, Nuffield Council onBioethicsForward Look13 May 2014

Forward Look13 May 2014Funding pressures in the NHS: an ethical responseBackground paperSummary1This background paper provides an overview of different forms of response tofunding pressures in the NHS, and seeks to identify those aspects where specificallyethical (as opposed to organisational and managerial) challenges may arise. Giventhe different health systems within the four countries of the UK, for the sake of brevitythis paper focuses primarily on the legal position and policy initiatives within England.Similar issues, however, are likely to arise across the UK, and indeed within anyother publicly-funded health system.Introduction and background: past approaches to the issue of funding constraints2The NHS Act 2006 sets out the duties of the Secretary of State for Health withrespect to the provision of health services. He or she “must continue the promotion inEngland of a comprehensive health service designed to secure improvement (a) inthe physical and mental health of the people of England, and (b) in the prevention,diagnosis and treatment of physical and mental illness.” 1 This duty has widely beenseen as guaranteeing that the NHS will meet “all reasonable requirements” forhealthcare. 2 However, case law relating to earlier formulations of the Secretary ofState’s duty has established that individuals cannot use this duty to claim anindividual enforceable ‘right’ to treatment, since the reality that resources can neverbe unlimited may legitimately be taken into account. 33Since the very beginning of the NHS, it has been the case that not every desirable(or desired) service can be provided within the funding available. Funding pressureswithin the first few years of the establishment of the NHS led to the passing oflegislation to enable charges to be made for prescriptions, for example, 4 and therehave been repeated challenges in the courts throughout the intervening decades bypatients who have not been able to access the treatment they need in what they1234NHS Act 2006, section 1(1), as amended.See, for example, guidance on commissioning published by the NHS Commissioning Board: NHSCommissioning Board (2013) Commissioning policy: ethical framework for priority setting and resourceallocation, at page 5.See, for example, R v Secretary of State for Social Services ex parte Hincks (1980)1 BMLR 93 and R vSheffield Health Authority ex parte Seale [1995] 25 BMLR 1/.NHS (Amendment) Act 1949.1

would regard as a reasonable timeframe. 5 Interim guidance issued in 2013 by theNHS Commissioning Board (the body responsible for commissioning specialistservices across England) states explicitly that “given resource constraints, the NHSCB cannot meet every healthcare need of all patients within its areas ofresponsibility. The NHS CB may take a decision not to commission a service to meeta specific healthcare need due to resource constraints. This does not indicate thatthe NHS CB is breaching its statutory obligations.” 6 While this guidance relates onlyto specialist centrally-commissioned services, it is clear that the same constraintsmust also apply to the much larger part of the NHS budget handled by ‘clinicalcommissioning groups’ (CCGs – the successors to Primary Care Trusts). Eventhough the NHS received unprecedented increases in funding between 2000 and2010, both the demand for services and the costs involved in providing thoseservices have continued to rise faster as a result of factors such as the ageing of thepopulation, the cost of introducing new therapies, and increased patientexpectations. 74This recognition that, despite its badging as a comprehensive service, the NHScannot meet every possible need, has led to extensive discussion of the practicalityand ethical acceptability of ‘rationing’ (also described as ‘priority setting’ or ‘resourceallocation’) within healthcare. Since the creation in 1991 of the ‘purchaser/provider’split which made a distinction between the health bodies8 responsible for ‘purchasing’or ‘commissioning’ services, and the hospitals and primary care services that providethem, such allocation decisions have become much more explicit, at three levels: 56789at the level of allocation to different geographical regions (using weightedcapitation formulae aiming to respond to disparate needs); 9at the level of allocation between different kinds of services (the main role ofCCGs who have to determine at a local level what services to commission, andhence by definition what services will not be available, or will be available onlyin limited quantity); andSee, for example, the landmark case of ‘Child B’ (R v Cambridge HA ex parte B [1995] 2 All ER 129,where the Court of Appeal held that it was not for courts to intervene in Health Authorities’ “difficult andagonising judgments” over how best to allocate a limited budget. However, the later case of R on theapplication of Watts v Bedford PCT and Secretary of State for Health 2004 EWCA 166, did hold thatunder EU law patients might be entitled to have care provided abroad reimbursed by the NHS if the NHShad been unable to provide it “within the time normally necessary”. The Court of Appeal took the view that“the time normally necessary” should be interpreted as relating to clinical judgment of an appropriate timeframe for treatment, not ‘normal waiting times’.See, for example, NHS Commissioning Board (2013) Commissioning policy: ethical framework for prioritysetting and resource allocation.For a useful summary, see: NHS England (2013) The NHS belongs to the people: a call for action.At the time known as District Health Authorities, whose role has in turn been subsumed by HealthAuthorities, then Primary Care Trusts (PCTs), and most recently by CCGs.The Department of Health’s written evidence to the Health Select Committee’s 2014 enquiry into publicexpenditure on health and social care summarised the formula (currently under review, with the aim ofinitial findings influencing allocations in 2014-15) as being based on the principle of “equal access forequal need”, with per capita funding adjusted by age and health of population and also local variations inthe cost of providing care. However, NHS England is also concerned not to destabilise local healtheconomies by moving funding abruptly from one area to another, and hence actual allocations are movingonly over time to the target allocations defined by the formula.2

56101112131415at the level of allocation between individual patients (for example where clinicalethics committees in hospitals or CCG committees determine ‘exceptional case’requests for treatment that would otherwise not be made available). 10Key ethical questions arising in such debates relate to the scope for varyingdefinitions of both ‘need’ and of ‘fairness’/’equity’/justice’. Examples include: How should ‘health’ need be defined? What comes under the banner of ‘health’,rather than ‘social’ need, and is there any consensus on when ‘demands’become ‘needs’? While the threshold question of when needs are ‘healthrelated’ rather than ‘social’ remains an ongoing challenge for the NHS (seeparagraph 33 below), the creation of the National Institute for Health and CareExcellence, 11 and its remit to develop evidence-based guidelines on themanagement of particular health conditions, provides one practical way in whicha national ‘steer’ is provided on what needs local health services should beproviding. What approach to ‘fairness’ should be taken (and should there be a singlemodel across all the levels of allocation)? The NHS Commissioning Board takesthe approach of “equal access for equal clinical need”, but also suggests that“priority may be given to health services targeting the needs of sub-groups ofthe population who currently have poorer than average health outcomes”. In itscost-effectiveness appraisals, NICE makes use of ‘Quality Adjusted Life Years’(QALYs) which provide a utilitarian tool for calculating what treatments willmaximise quality and length of life. 12 However, in recognition of the strongcriticisms to which QALYs have been subject on equity grounds, 13 NICE alsoemphasises the importance of its Social value judgments in deciding whether ornot to recommend an intervention as suitable for adoption by the NHS, withexplicit reference to “the need to distribute health resources in the fairest waywithin society as a whole”. 14Distinct questions of procedural ethics also arise, raising such questions as whereresponsibility for making particular decisions should lie; how transparent the processof decision-making is; and who should determine (or be involved in determining) thecriteria by which allocation decisions are made. 15 The 2013 NHS CommissioningBoard interim guidance on priority setting highlights the importance of theseprocedural factors, emphasising the need to take a “systematic” approach that “fairly”See, for example, East Riding of Yorkshire CCG guidance on individual funding requests (exceptionaltreatments), available at -zone/ifr/.Initially known as the National Institute for Clinical re/who we are.jsp.NICE (2010) Measuring effectiveness and cost effectiveness: the QALY, available r example, that they have the potential to discriminate against groups of people with existing disabilityor ill health, as the benefit of their proposed treatment may be ‘discounted’ in the QALY process becauseof their existing impairments. For further discussion, see: Nuffield Council on Bioethics (2011) Hyperexpensive treatments.NICE (2008) Social value judgments: principles for the development of NICE guidance, Principle 3.See, for example, the discussion of ‘accountability for reasonableness’ in Daniels N (2000) Accountabilityfor reasonableness: establishing a fair process for priority setting is easier than agreeing on principlesBMJ 321(7272): 1300-1.3

distributes services across different patient groups. “It can only do so if all decisionmaking is based on clearly defined evaluation criteria and follows clear ethicalprinciples”. 16 National bodies such as NICE and local NHS commissioning bodiesmay also seek public and stakeholder input before coming to their decisions. 17Failure to satisfy stakeholders that decisions have indeed been taken in aprocedurally acceptable way may lead to individuals or organisations seeking judicialreview of the public bodies responsible.7Whether described as ‘resource allocation’, ‘priority setting’ or ‘rationing’, thechallenges described above relate primarily to the role of commissioners in the NHSdeciding what to do (and hence by implication what not to do), with the money madeavailable to them. The discussion is thus very much at the level of ‘managerial’,rather than clinical, decision-making, although this does not, of course, mean thatclinicians will not be involved in those decisions. This question of the processes bywhich particular services or patients, in particular areas, receive particular levels offunding has been discussed at various times as a possible topic for the NuffieldCouncil to take forward: in 2007 in a general workshop on NHS rationing; in 2011 inits discussion of hyper-expensive treatments; and most recently in 2013 in adiscussion of expensive life-extending treatments. The issues have also been, andcontinue to be, extensively debated, discussed and worked through in academic,policy and political spheres. On each past occasion the Council has concluded thatthere is little distinctive that it could bring to that debate. In particular, the Council hasbeen concerned that it would be misleading to look in isolation at a relatively smallsubsection of the NHS budget (the drugs budget), without looking at the wholepicture of spending within the NHS: a task that is inextricably tied up with verycomplex questions of health systems and management which others may be muchbetter placed to address.8However, a question that has not been raised in the Council’s discussions to date onrationing is the question of the impact of resource pressures on the quality of care.When looking at the basic tension inherent in the aim of providing a ‘comprehensive’service with resources that can never being open-ended, the idea that one way ofdealing with that tension is to reduce quality of care, whether explicitly, inadvertentlyor covertly, is hardly seen as an acceptable possible solution. 18 Yet in practice, in theexperience of frontline practitioners, this may be everyday reality – that they are (atleast at times) not able to give what they would regard as a good, or evenacceptable, quality of care, because of funding constraints, in particular where thoseconstraints have led to far from optimal levels of staffing. 19 The remainder of thispaper will focus on this question of the impact of NHS funding pressures on thequality of care provided.16171819NHS Commissioning Board (2013) Commissioning policy: ethical framework for priority setting andresource allocation.See, for example, the NICE citizens’ council and consultation procedures.This does not mean, of course, that the risks of quality being jeopardised by pressure on resources hasnot been recognised in the literature: see, for example, Maxwell B (2009) Just compassion: implicationsfor the ethics of the scarcity paradigm in clinical healthcare provision Journal of Medical Ethics 35(4):21923.See, for example, The Guardian (4 April 2014) Patient care under threat as overworked doctors miss vitalsigns, expert warns.4

Impact on quality: possible approaches920212223242526The question of the quality of NHS care, particularly hospital-based care, has beenthe subject of intense public and political scrutiny as a resu