A & Anor, R (on the application of) v Secretary of State for Health

The NHS Act 2006 imposes a qualified, judgment-based duty to provide specified services only to the extent considered necessary to meet all reasonable requirements. A residence-based system allocating responsibility between the United Kingdom’s health jurisdictions is rational and lawful. The Secretary of State may have regard to the fact that another jurisdiction has chosen not to provide particular services, including abortion services, and may adopt a corresponding policy without unlawfully fettering his discretion.

Article 14 does not require the State to fund abortion where Article 8 requires only an effective and accessible procedure for obtaining lawful abortion services. A person denied NHS treatment because she is not ordinarily resident in the relevant area is not thereby necessarily discriminated against on grounds of personal status.

The claimant, a minor ordinarily resident in Northern Ireland, travelled with her mother to England for a lawful abortion at a private clinic. She complained that she could not obtain the procedure free of charge through the NHS. The claim challenged the Secretary of State’s policy that, in general, the NHS should not fund services for Northern Ireland residents which the Northern Ireland Assembly had chosen not to legislate to provide and which would be unlawful in Northern Ireland.

The challenge concerned both the pre-April 2013 regime, under which Primary Care Trusts operated a residence-based system, and the post-April 2013 arrangements involving clinical commissioning groups. The claimant alleged breach of the statutory duty under the National Health Service Act 2006 and discrimination contrary to Articles 8 and 14 of the Convention.

1. Statutory duty. The claim was dismissed. Section 3 of the National Health Service Act 2006 imposed a qualified duty requiring judgment as to what was necessary to meet all reasonable requirements. It did not require the provision of every health service, or every reasonable requirement.
2. The residence-based arrangements under the Function Regulations, and the substantially equivalent post-April 2013 arrangements, were a rational exercise of the statutory duties. They reflected the division of health-care responsibility between England, Scotland, Wales and Northern Ireland. The Secretary of State was entitled to regard the primary responsibility for Northern Ireland residents as resting with the Northern Ireland authorities.
3. The limited availability of abortion in Northern Ireland did not make the English residence-based system perverse. The Secretary of State was entitled to adopt a policy that the NHS should generally not fund services which the Northern Ireland Assembly had deliberately chosen not to legislate to provide and which would be unlawful in Northern Ireland. The policy did not unlawfully fetter discretion because it could be changed and the statutory mechanisms permitted modification of the arrangements.
4. Convention challenge. The claimant had access in England to lawful abortion services and identified no procedural deficiency. Tysiac v Poland established no Convention right to an abortion, or to a state-funded abortion. It required an effective and accessible procedure for determining entitlement to, and obtaining, lawful abortion services. Those obligations were satisfied.
5. Absent a Convention right to state-funded abortion, denial of NHS funding did not establish discrimination in the enjoyment of Article 8 rights. The Article 14 claim therefore failed. The judge additionally considered, without finally determining the issues, that the residence-based distinction might not involve a personal characteristic or status and, in any event, had compelling objective justification within the wide margin of appreciation.

The claim was dismissed. Costs and ancillary matters were left for written submissions.

First-instance judicial review in the High Court (Administrative Court). The claim was dismissed.