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Accountability for reasonableness: the relevance, or not, of exceptionality in resource allocation

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Abstract

Accountability for Reasonableness has gained international acceptance as a framework to assist with resource allocation within healthcare. Despite this, one of the four conditions, the relevance condition, has not been widely adopted. In this paper I will start by examining the relevance condition, and the constraints placed on it by Daniels and Sabin. Following this, I review the theoretical limitations of the condition identified to date, by prominent critics such as Rid, Friedman, Lauridsen and Lippert—Rasmussen. Finally, I respond to Daniels and Sabin’s enthusiasm for testing the accountability for reasonableness framework in different contexts, by evaluating the challenges of implementing the relevance condition within the NHS. I use the funding of treatments for patients on the basis of their exceptional circumstances as a case study to examine whether the relevance condition could be applied in practice.

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Notes

  1. Although not without their critics, the three other conditions of the accountability for reasonableness framework are not as controversial, and are less challenging to apply in practice.

    Limits of space prevent me from examining them, or the role of procedural frameworks in priority setting more broadly. For a discussion of the latter issue see Sabik and Lie (2008).

  2. They do not, however, exclude outright the possibility of substantively correct answers (Daniels and Sabin 2008).

  3. The voting procedure to be used is not specified by the accountability for reasonableness framework, but left to the discretion of the institution (Daniels 2009).

  4. It is implicit here that Daniels and Sabin are referring here to an alternative distribution of resources within the health care budget. They do not address whether the current distribution of resources between health and other public needs is fair (Daniels and Sabin 2008). Harris and Regmi (2012) have advanced the idea that medical treatment should only be deemed unaffordable if other national budgets, which would have to be reduced to fund health care, are protecting interests of comparable importance.

  5. In addition, Daniels and Sabin describe the criteria used by the Blue Cross/Blue Shield Medical Advisory panel, as examples that ‘all stakeholders should accept as relevant and appropriate—if not sufficient’ for making decisions regarding the coverage of new technologies. These are; the technology must have final approval from the appropriate government regulatory body; the scientific evidence must permit conclusions concerning the effect of the technology on health outcomes; the technology must improve net health outcomes; it must be as beneficial as any established alternative and the improvement must be attainable outside investigational settings.

  6. This is not universally accepted. Harris, for example, argues that what matters is that every individual gets an equal chance of accessing treatment, irrespective of cost effectiveness (Harris 1997).

  7. Further guidance as to what constitutes relevant reasons are contained within a qualitative case study of health care priority setting (Singer et al. 2000). The study cites factors which the authors found were being considered in practice, including benefit, evidence, side effects, cost and cost effectiveness. In an accompanying editorial, Daniels confirms that the reasons reported are the kinds of reasons that meet the relevance condition (Daniels 2000).

  8. For an exploration of the implications of moral pluralism see Wolf (1992).

  9. In this context, Rid interprets justice as fairness, referring to Rawls (1971).

  10. Rid defines constrained pure procedural justice as a process with: ‘…an independent, but indeterminate, criterion of justice that is consistent with more than one possible outcome’, which enables a fair choice to be made between these equally just outcomes.

  11. Daniels proposes that the public accountability ensuing from the publicity condition, which requires policy makers to be explicit about the rationales behind priority setting decisions, will help ensure the formal requirements of fairness are met (Daniels and Sabin 2008).

  12. In addition, Friedman reminds us that people can be right about something, even if their reasoning is misguided, and therefore failing to give consideration to poorly reasoned ideas may risk dismissing ideas which are nonetheless of value.

  13. There may be reasons, relating to the principle of fair equality of opportunity, for regarding religious beliefs as a reasonable consideration under the relevance condition. These are discussed in Section 4 i. See also Savulescu (1998).

  14. Evidence to support this view can be found in Daniels and Sabin (2008), p. 45 which refers to ‘the fair-minded search for mutually acceptable rules’, suggesting an element of discussion in reaching agreement on which reasons will be considered relevant. This is re-iterated in Daniels (2009), p. 38 which states ‘The point behind insisting on what we call the relevance condition is to search for mutually justifiable reasons.’

  15. See R v North West Lancashire Health Authority, ex p A, D &G [2001] 1 WLR 977 para 990. CCGs can, of course, also choose to commission drugs for their local population which are not approved by NICE.

  16. The NHS Confederation is an independent membership body for organisations that make up the NHS, which aims to influence health policy. This definition of exceptionality is attributed to Dr Henrietta Ewart, Consultant in Public Health Medicine (The NHS Confederation 2008).

  17. Clearly, in practice, this may not be the case, but time and space do not allow me to address this issue here.

  18. For a taste of the debate, see Williams (1985), Lockwood (1998) and Harris (1987, 1992, 1997).

  19. Mark Sheehan has advanced his own interpretation of what is required of a reasonable person in this context, as someone who understands (a) the nature of the decision, (b) that the decision needs to be made, (c) that there is reasonable disagreement to be had and (4) who is disposed to reaching a decision. ‘Rare and exceptional: Dealing with difficult healthcare resource allocation decisions’ M. Sheehan, Lent Lecture, Kings College London, 27/2/12.

  20. For example, Menzel (1990).

  21. For a discussion of the role of lay people, and patients, in resource allocation see Torgerson and Gosden (2000), Russell et al. (2011).

  22. Judicial review limits the courts to considering whether a CCG is guilty of procedural impropriety, has acted irrationally, or beyond its powers.

  23. This issue was raised in the case of R (Ann Marie Rogers) v. Swindon Primary Care Trust and the Secretary of State [2006] E.W.C.A. Civ 392 para 42. Rogers sought Judicial Review of her PCT’s decision not to fund the cancer drug Trastuzumab. Her oncologist said she was one of about twenty patients he treated who would benefit from the drug, and was therefore not exceptional.

  24. In one case publicised in the media, legal costs incurred by the PCT amounted to more the cost of the drug requested (Welsh 2008).

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Acknowledgments

I am grateful to Professor John Harris, and two anonymous peer reviewers, for their comments on earlier drafts of this paper.

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  1. School of Law, University of Manchester, Williamson Building, Oxford Road, Manchester, M13 9PL, UK

    Amy Ford

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Ford, A. Accountability for reasonableness: the relevance, or not, of exceptionality in resource allocation. Med Health Care and Philos 18, 217–227 (2015). https://doi.org/10.1007/s11019-014-9592-7

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