legal briefing

The allocation of resources in the NHS could be the first area of collision between the courts and the government once the new Human Rights Act comes into force, health law expert Ian Kennedy predicts.

Professor Kennedy, an expert in health law, ethics and policy at University College, London, told the Bar's recent annual conference that the courts have so far avoided being drawn into the issue, but that will not be an option once the act is implemented.

The act, which will incorporate the European Convention on Human Rights into UK law, will not come into force until between January and April 2000, to give judges time to be trained to deal with what will amount to a revolution in the courts.

Health service managers will need training, too, because they will have to weigh up convention rights, including the right to life, in taking decisions which the courts will scrutinise in a new way.

Challenges to the refusal to fund a particular treatment have so far largely failed - with the notable exception of a case last year over beta interferon - because the courts' powers are limited under judicial review and the management of resources is seen as a matter for the NHS.

Under the new law, patients are certain to invoke the right to life, guaranteed by the European Convention, to fight decisions refusing them expensive treatments. The case of Child B, the young leukaemia patient whose father went to court to fight a decision denying her further treatment on clinical as well as cost grounds, would take on a new dimension.

The refusal of more than 80 per cent of health authorities to pay for Taxol for ovarian cancer seems a prime target for attack under the act.

Mr Justice Laws, the High Court judge who ruled in Child B's favour, but whose decision was reversed by the Appeal Court, told the conference that courts would have to look at the nature of discretionary power differently in the new era. At present it is up to officials taking decisions to decide what weight to give to various factors. That will change.

He said the courts would no longer use the 'Wednesbury' test for judicial review. This has given decision-makers wide discretion as long as their decisions are not perverse or irrational.

'We will no longer be living in a world where the decision-maker has the right to not only the first but the last say on priorities,' he said.

'This will impose on decision-makers a new form of scrutiny. It will require tighter decision-making.'

For the first time, officials will have to give reasons for decisions. Peter Duffy, a QC specialising in human rights law, warned: 'If decision- makers don't provide explanations of the weight they have given to convention rights, they will have great difficulty sustaining their decisions.'