A, R (on the application of) v The Secretary of State for Health & Anor (Rev 1)

The Secretary of State’s power to direct a Special Health Authority is broad. It may permit different provision for different classes of case, including in the allocation of scarce transplant organs, provided the direction remains within the target duty in the National Health Service Act 2006 and is otherwise lawful.

The Act contains no general obligation to provide NHS services to every person in England, nor does the charging regime for persons not ordinarily resident create such an obligation. The common law right to life does not confer a right to a particular form of life-saving medical treatment.

The claimant, an unlawfully resident Ghanaian national suffering from end-stage kidney disease, challenged directions governing the allocation of organs for transplantation. The directions placed persons not ordinarily resident in the United Kingdom in Group 2 and prevented them receiving an organ where a clinically suitable Group 1 person existed.

The claimant argued that the Secretary of State lacked statutory power to make or maintain the directions. He relied on the general NHS duty, provisions concerning clinical commissioning groups, charging provisions, statutory construction principles and fundamental common law rights. The central issue was whether the directions were ultra vires the Secretary of State’s powers under the National Health Service Act 2006.

1. Claim dismissed. The 2005 Directions were within the Secretary of State’s statutory powers and were not ultra vires.
2. The duty in section 1 of the National Health Service Act 2006 is a target duty. It supplies the general objectives and gives emphasis and colour to more specific statutory powers and duties, but it does not impose a direct obligation to provide a comprehensive health service to everyone in England.
3. The majority reasoning in R (A and B) v Secretary of State for Health [2017] UKSC 41 established the relevant interpretation of section 1. The reference to the people of England focuses on those having a legitimate connection with the country. The claimant’s unlawful residence meant that the Supreme Court decision did not determine whether the wider analysis of lawful residence in R (YA) v Secretary of State for Health [2009] EWCA Civ 225 was correct, but the Supreme Court’s express approval of that analysis made it correct for present purposes.
4. The responsibilities of clinical commissioning groups under section 3, including responsibility for persons who usually reside in their areas, did not determine the Secretary of State’s powers concerning a national organ-allocation system. That system was the responsibility of a Special Health Authority expressly constituted for transplantation.
5. Sections 8 and 272 of the National Health Service Act 2006 authorised directions concerning the exercise of any relevant Special Health Authority function and permitted different provision for different classes of case. The power was limited by section 1, but the distinction between Groups 1 and 2 was not inconsistent with that target duty. The charging provisions were a discrete matter and did not imply a general entitlement to treatment.
6. No fundamental common law right was overridden. The right to life did not entail a right to medical treatment, still less to transplantation rather than dialysis. No degrading treatment was established.

As the human rights and rationality challenges had been abandoned, the claim for judicial review was dismissed.

The claimant’s application for judicial review was initially refused permission. Permission to appeal was later granted by Gross LJ and the matter was remitted to the Divisional Court. The present court dismissed the judicial review claim.