Judicial Restraint in Healthcare Matters

‘Free testing for COVID-19 shall be available to person eligible…, and any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19, hereinafter.’[1]

This is an excerpt from the modified order of the Supreme Court of India which had originally directed the government to conduct free COVID-19 tests for the public even in private labs.[2] The order was modified when health experts, and the government, protested against the order, deeming it commercially unreasonable and onerous on the stakeholders involved (government and private labs). The order passed by the Indian Supreme Court is a typical example of courts from several jurisdictions, where they actively try to intervene in the matters related to healthcare. In principle, the decision-making bodies are always subject to judicial scrutiny i.e. judicial review.[3] But is such a review always beneficial for the people and the democratic process? This paper aims to discuss the reasons as to why it is often not reasonable for courts to intervene in matters related to healthcare provisions, and therefore they should exercise judicial restraint.

This paper is divided into three parts: firstly, it discusses how healthcare provisions involve complex policy and technical questions, which courts are not competent to resolve. The first part is further subdivided into two parts, which discuss a) polycentricity and b) expertise in the context of healthcare matters. Although the policy and technical complexities are the most important reasons as to why the judiciary should exercise judicial restraint, they are not the only reasons. Therefore, the second part of the paper will discuss the nature of the right to healthcare as a socio-economic right and the need for exercise of judicial restraint when adjudicating over such rights. Lastly, the paper lays down the situations under which it is beneficial for courts to intervene in the matters relating to healthcare provisions, and therefore recognise that blanket restraint is not suggested for courts in the cases concerning healthcare matters. The three parts will be followed by a brief conclusion.

TECHNICAL AND POLICY REASONS

Complex technical and policy questions are involved in almost all aspects of healthcare provisions; however, their effect is more significant when the allocation of resources within a healthcare system is litigated. Not only it undermines the decision of policymakers, it also places the weaker segment of the society at disadvantage.[4] The purpose of approaching courts is to enforce a right and to correct injustices. However, in the case of enforcing healthcare rights, such enforcement may (subject to the nature of the claim and the order given) deprive the weak and poor segment of the society of the limited public resources that were allocated to them by policy makers.[5] When such a case is presented before a court, it can have two possible impacts. Firstly, if the result is in favor of the claimant trying to have access to healthcare facility, it will have little progressive effect on the overall system if it is not systematically implemented.[6] Furthermore, such a decision is likely to open the floodgates for the enforcement of any benefit recognised by the court and will overburden the judiciary. Conversely, the other possibility is that the court restrains from adjudicating over the issue, thereby denying access to the facility, resulting in public/political debate leading to the government taking action for giving access to such facility.[7] This part of the paper will further explore two more aspects of healthcare provisions, due to which courts should exercise judicial restraint.

POLYCENTRICITY

The word “polycentricity” literally refers to a matter that involves multiple centers. In the context of judicial restraint on healthcare provisions, polycentrism denotes a “decision” that affects various subjects at the same time.[8] Healthcare is one example of polycentricity that courts are not well equipped to deal with because of the multitude of factors involved in it.

Healthcare decisions are based on opportunity costs i.e. some patients get some kind of treatment at the expense of some other patient getting some different type of treatment.[9] Courts are bound to look at the specifics of a case, and therefore, more often than not, they will not appreciate the broader picture involved. In making such decisions, the policymakers (ideally) tend to keep the interest of the most vulnerable people in mind, and it is possible that a group of people may not be able to benefit from such policy. Lord Denning correctly identified the concern while writing his opinion in the case R v Secretary of State for Social Services, ex parte Hincks:[10]

It cannot be supposed that the Secretary of State has to provide all the Kidney machines which are asked for, or for all the new developments such as heart transplants in every case where people would benefit from them. It cannot be that the Secretary of State has a duty to benefit from them. It cannot be that the Secretary of State has a duty to provide everything that is asked for in the changed circumstances which have come about. That includes the numerous pills that people take nowadays: it cannot be said that he has to provide all these free for everybody.

Lord Denning realised that a patient could not complain about the lack of one aspect of healthcare because these matters are much broader in scope. Therefore, he implied that the courts should not take individual and discrete decisions in healthcare matters.

Building on Lord Denning’s opinion, the demand for the (tertiary) healthcare facilities required is endless and cannot possibly be met with the limited funding allotted to it.[11] Courts, by their very structure, are bound to listen to the merits of the individual case, and if the individual has been able to build on the merits of the case, it is likely that the complainant will get remedy if the court does not show restraint. The problem does not end here; by allowing such remedy, the court is encouraging more people to file their claims, and courts cannot limit the number of people filing the cases. Furthermore, on every grant of remedy to one person, the resources for the treatment of one other person are being utilised without him/her given the chance of being heard. These decisions, by its very nature, are based on competing interests, and the policymakers, after evaluating all the interests and stakeholders involved, take these decisions. Perhaps, courts without such information of the interests involved, and without the requisite technical knowledge are inept to adjudicate over the issue. Moreover, the adversarial nature of courts’ proceedings results in information being brought up to courts that is only beneficial to the parties, in contrast to all the empirical data and the input of all the stakeholders that is used by the policymakers while laying out a policy framework for healthcare.[12]

One counter argument given for healthcare as a polycentric matter is to analyze different aspects of the issue individually or to take up one aspect of it which needs attention.[13] Courts can consider any illegality or mistake in one aspect of the decision-making, and then link it with the overall decision of the decision-makers. This was evident in the case of Walsh v Pharmaceutical Management Agency[14] where the High Court of New Zealand analyzed different aspects of the case separately.  In this case, the plaintiffs (a group of breast care patients) challenged the decision of the defendant to authorise funding of Herceptin (a very expensive drug used for the treatment of breast cancer) to only limited categories of breast cancer patients. Although the Court eventually ruled in favor of the decision-makers, the approach used by the Court in this case can be used as an argument to counter polycentrism in healthcare matters. There are two ways in which courts can take up these matters by using this approach, either by taking up the claims of the individuals who are not given the desired benefit by the policy, or by reviewing the policy in terms of how the decision was taken. If it is the former, then courts will end up putting a burden on state resources, and no matter what they do, they will have to deal with the polycentric nature of the issue if they are giving the remedy. So, in that case, it is in the greater interest that they exercise judicial restraint. However, in the latter case, which was also the concern in Walsh v Pharmaceutical Management Agency,[15] when the decision is being reviewed based on fairness in procedure and the powers of the decision-makers as laid down in law, courts should intervene and review the decision. The conditions under which courts should and should not intervene are discussed in detail in the last part of this paper.

EXPERTISE

As already mentioned, healthcare policy decisions are multifaceted. However, along with being multifaceted, it is a technical field and requires expertise in both, the allocation of resources, and the weighing out of competing interests. Therefore, courts, rather than going on their own should allow the experts to make these decisions. The courts of New Zealand, in particular, have acknowledged this factor and have held several times that these matters should be referred to experts. In Lab Tests Auckland Ltd v Auckland District Health Board,[16] the decisions of the district health board were brought before the court for its review. The court held:

The decision was made by an evaluation panel comprising well-experienced people from both inside and outside the Auckland Regional District Health Boards. We do not think that a court is well placed to assess on a judicial review application the medical, economic and other complexities raised.[17]

Similarly, in Shortland v Northland Health Ltd,[18] the New Zealand High Court dismissed the application of the claimant to overturn the decisions of the doctors who believed that giving dialysis treatment to the patient was of no use. The Court held that since the decision was made by the experts in the field i.e. doctors, and the decision was clinical, the Court would not intervene. The Court also rejected the argument of the claimant that such treatment violated right to life. The approach used by the courts of New Zealand is ideal in these cases as they restrain from interfering in the matters that have been taken by healthcare professionals and experts, and such an approach should be used by courts generally for the benefit at large. 

Often, it is argued that relevant information and expertise can be brought before courts through the help of both the parties and amicus curiae. The legislative committees take opinions of the experts and hear witnesses before enacting, and courts could do the same.[19] Similarly, it is argued that, in cases of judicial review of a particular law/policy, courts listen to the opinions of the experts from both sides, and therefore cannot be said to be ill-informed on the matter. One such case is R (on the application of Otley) v Barking and Dagenham, NHS Primary Care Trust,[20] where the assessment of the decision-makers was challenged on the ground that they had considered mistaken facts and irrelevant factors. The defendant panel had decided that the claimant’s request of funding of medicine for treatment of cancer would not be approved because there was not sufficient evidence that it would be a cost-effective use of the defendant’s resources, and that it will significantly prolong the life of the claimant. The Court eventually ruled against the decision-makers and held they had in fact erred in reaching their decision. If the Court had exercised judicial restraint in this matter, it would not have been in the public interest. Instead, it would have been to the contrary – decision-makers taking a decision based on wrong facts and suppositions. To rebut the first point that courts can have sufficient information, it will still have to decide the case in favor of one of the parties based on the adversarial nature of proceedings. It also means that some parties and stakeholders will still be unheard, and their rights will be affected when the court intervenes in such matters. For the argument that they will have the expert’s opinion from both sides in cases of judicial review, courts are never discouraged from intervening when there is some mistake (intentional or unintentional) in decision-making. The circumstances in which courts should intervene are discussed in detail in the last part of the paper.

RIGHT TO HEALTHCARE AS A SOCIO-ECONOMIC RIGHT

The right to healthcare is a socio-economic right, which generally is not justiciable, with South Africa and countries of Latin America being exceptions.[21]At transnational level, the socio-economic rights are laid down in International Covenant on Economic, Social and Cultural Rights (and in other regional treaties), and the states have responsibility to progressively realise the rights laid down in the Convention.[22] The rights laid out in the Convention have “some significant justiciable dimensions.”[23] However, the justiciability of socio-economic rights is different in domestic framework of the states. In countries like India and Pakistan, the constitutional framework includes socio-economic rights, but the courts cannot enforce them (except those which are included as fundamental rights). Article 29(2) of the Constitution of Pakistan[24] and Article 37 of the Indian Constitution[25] bar the jurisdiction of the courts to enforce these rights and recognise these rights as aspirational. The socio-economic rights have been mainly seen as facilitating the interpretation of civil and political rights, which are laid down in the constitutions and they have never solely been interpreted by the local courts. Even though the constitutions generally bar the justiciability of socio-economic rights, courts still find their way in enforcing these rights. However, courts should exercise judicial restraint in enforcing these rights because these rights are inherently different from civil and political rights.

Socio-economic rights are considered different from civil and political rights because they impose positive obligations on the state to fulfill those rights, while the latter are mostly deemed as negative obligations. Similarly, the socio-economic rights, such as the right to healthcare, needs significant state resources for the realisation of those rights, the justiciability of which will overburden the state. Conversely, it is argued that some of the civil and political rights also put an affirmative duty on the state to enforce a particular right resulting in expenditure on part of the state for the enforcement of that right. However, the nature of socio-economic rights is such that it will always involve policy decisions where the competing interests are weighed. It is easier for courts to have the information in cases of civil and political rights and once the person has that right, the court will enforce it. However, in the cases of socio-economic rights, due to limited budget and other constraints, the policymakers craft the policy that is feasible when viewed as a whole. Courts may not be able to see that picture and will enforce the right at the expense of other people and increase the burden on the state in terms of expenditure of resources on a particular area. However, this is not to say that courts should not enforce the socio-economic rights at all, and they should be able to enforce it in the conditions discussed in the following part.

WHERE SHOULD JUDICIAL INTERVENTION BE ALLOWED?

There have been several reasons advocated as to why the judiciary should exercise restraint when dealing with matters of healthcare. However, that is not to suggest that courts should altogether avoid the subject and deny any remedy to cases concerning healthcare. Courts can and should intervene under two circumstances: First, they should intervene to enforce the specific law or policy that has been introduced by the legislature for the benefit of the public or a group of people. Secondly, courts should intervene on the grounds of fairness and reasonableness. The second ground also includes mala fide or illegality on the part of decision-makers.

Firstly, courts should intervene to enforce the laws/policies enacted by the legislature/government when they are not adequately enforced in favor of the public. In such cases, there is no issue of expertise or resources. Neither is the court reviewing the policy nor is it making any new facilities available. It is merely enforcing what has already been enacted by the decision-makers. The judgment of the High Court of Delhi in Laxmi Mandal v Deen Dayal Harinagar Hospital and Ors[26] explains this proposition better. The government of India introduced several schemes to give healthcare benefits to pregnant women below the poverty line.[27] In this case, two women were denied those facilities by the hospitals, and they eventually appealed before the High Court.[28] The Court held:

Both the cases point to the complete failure of the implementation of the schemes. With the women not receiving attention and care in the critical weeks preceding the expected dates of delivery, they were deprived of accessing minimum healthcare at either homes or at the public institutions.

Although the Court read the right to healthcare into the right to life, that aspect of the judgment is beyond the scope of the current topic. The relevant point of the judgment here is that the Court enforced the schemes of the government to give benefit to the people who were denied healthcare facilities under those schemes. By doing so, the Court is only reiterating the decision of the government and is by no means putting an extra burden on its resources. It is entirely within the Court’s domain to enforce the rights that have been given to the people by these schemes. Similar to this case, if courts intervene in the cases where the beneficiaries of such enactments are being deprived of the facilities, it would be in public interest for the courts to enforce those facilities. It would also be a mechanism to keep a check-and-balance on the executive and those authorities who are responsible for implementing such enactments.

The second ground, where intervention by courts would bear desirable consequences is fairness, reasonableness, and legality. Although the “term” reasonableness gives a wide subjective element to decide on the matter, it is not difficult to comprehend that so long as certain healthcare enactment is in the interest of the public (or some segment of the people), it will be reasonable. Further, so long as the procedure laid down in the law is followed, and there is no mala fide, it will be deemed as fair too. Courts can and should intervene in cases if these elements are missing. The case that can appropriately illustrate this point is R v Central Birmingham Health Authority, ex parte Collier[29] where the complainant was denied heart surgery. The Court held that since there was no mala fide or unreasonableness on part of the authorities, the treatment was denied for “good reasons” and therefore refused to intervene in the matter. However, if mala fide or unreasonableness were established against the hospital or the decision-makers, the Court would have been justified to intervene in the case.

Similarly, in Walsh v Pharmaceutical Management Agency,[30] the High Court of New Zealand took up the matter on the allegations of procedural and substantive unfairness, and the exercise of excessive statutory powers. Although the Court ruled against the claimant, it would have been right to intervene if the Court had found that the regulatory body acted ultra-vires of their powers and functions as laid down in the law, or they had acted unfairly. After recognizing that there was no illegality in the way the decision was taken, the Court held that the claims of the petitioner then pertained to the merits of the decision, which was outside of the Court’s jurisdiction. The approach used by the Court in this case, and the distinction that they made, is exactly what courts should generally appreciate while dealing with the matters of healthcare.

CONCLUSION

Courts should exercise restraint when dealing with the matters of healthcare because there are policy and technical reasons. The matters relating to healthcare are polycentric and require  knowledge which courts lack. Furthermore, the healthcare right is a socio-economic right, and since these rights involve more complex technical and policy questions than the civil and political rights do, courts should not adjudicate over these rights. However, the restraint should not be absolute, and courts should be able to intervene when the beneficiaries under some law/policy are not acquiring the enacted benefit. They could also intervene when the decision is in violation of the law, or there is some malafide or unfairness on the part of decision-makers.

However, there are other aspects of this topic that could be explored further. There is a debate on the trichotomy of powers where the judiciary is asked to not intervene in the domain of the legislature and the executive, and this debate is relevant here too. There is also a debate of interdependence of civil/political rights and socio-economic rights, and hence the need for implementation of both. Further, the arguments made in this paper are general in nature and are not specific to any one group of jurisdictions having similar economies. There could be variation in the restraint exercised by courts when jurisdictions are compared in terms of their economies i.e. developed countries v developing countries. Similarly, there will be variations in restraint when different systems of healthcare are considered (public system, welfare system, or public/private system). Regardless of all these aspects, the underlying arguments remain the same, and these specifics will only build on the arguments made in this paper. The job of the judiciary is to interpret the law and adjudicate over the claims of the parties. Nevertheless, it should consider the greater public interest, especially in areas like healthcare where its decisions can have a significant impact on several parties.

[1]Shashank Deo Shudhi v Union of India and Ors, Writ Petition No 10816/2020, Supreme Court of India.

[2]Krishnadas Rajagopal, ‘Coronavirus | Supreme Court Urged To Modify Order On Free COVID-19 Testing By Private Labs’ (The Hindu, 2020)

[3]Reckitt and Column (New Zealand) Ltd v Pharmaceutical Management Agency Ltd, [1997] NZAR 464 (HC), 474.

[4]C Flood and A Gross, ‘Litigating The Right To Health: What Can We Learn From A Comparative Law And Health Care Systems Approach’ (2014) 16 Health and Human Rights Journal, 65.

[5]ibid, 65.

[6]ibid, 65.

[7]ibid, 65.

[8]Lon L. Fuller and Kenneth I. Winston, ‘The Forms And Limits Of Adjudication’ (1978) 92 Harvard Law Review, 394-396.

[9]Rachael Baillie, ‘Judicial Restraint When Reviewing Heath Care Rationing Decisions: A Healthy Approach’ (2012) 18 Auckland University Law Review137, 144.

[10]R v Secretary of State for Social Services, ex parte Hincks, [1980] 1 BMLR 93 (CA), 95-96.

[11]ibid, 95-96.

[12]K Syrett, Law, Legitimacy And The Rationing Of Health Care: A Contextual And Comparative Perspective (Cambridge University Press 2007), 147-148.

[13](n 9), 148.

[14]Walsh v Pharmaceutical Management Agency, [2008] NZHC 441.

[15]ibid.

[16]Lab Tests Auckland Ltd v Auckland District Health Board, [2008] NZCA 385.

[17]ibid .

[18]Shortland v Northland Health Ltd, [1998] 1 NZLR 433 (HC).

[19]A Nolan, ‘The Justiciability Of Social And Economic Rights: An Updated Appraisal’ (Human Rights Consortium, Northern Ireland 2007).

[20]R (on the application of Otley) v Barking and Dagenham NHS Primary Care Trust, [2007] EWHC 1927.

[21]The Government of the Republic of South Africa and others v Irene Grootboom and others,2001 (1) SA 46 (CC); Rosalind Dixon and Tom Ginsburg, Comparative Constitutional Law In Latin America (Edward Elgar Publishing Limited 2017), 329.

[22] Article 2. 1. Each State Party to the Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

[23]Committee on Economic, Social and Cultural Rights, ‘General Comment No. 9: The Domestic Application Of The Covenant’ (United Nations Economic and Social Council 1998)[10].

[24]29(2). In so far as the observance of any particular Principle of Policy may be dependent upon resources being available for the purpose, the Principle shall be regarded as being subject to the availability of resources.

[25]37. The provisions contained in this part shall not be enforceable by any court, but the principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

[26]Laxmi Mandal v Deen Dayal Harinagar Hospital, W.P(C) 8853/2008.

[27]ibid .

[28]ibid .

[29]R v Central Birmingham Health Authority, ex parte Collier, EWCA, 6 January 1988 (Unreported). 

[30]ibid