BA, R (On the Application Of) v The Secretary of State for Health and Social Care

The Secretary of State’s duty to promote a comprehensive NHS is an aspirational target. The duty to provide particular services is qualified by what the Secretary of State considers necessary to meet all reasonable requirements. That judgment may take account of present resource scarcity.

Accordingly, subject to ordinary public-law controls, scarce kidney-transplant organs may be allocated by prioritising persons ordinarily resident in the United Kingdom. General direction-making powers do not enlarge the underlying statutory function, but the power derived from section 3 of the National Health Service Act 2006 was broad enough to support the prioritisation. Express charging provisions did not impliedly confine the discretion to clinical criteria. The appeal was dismissed.

The appellant suffered from end-stage kidney disease and required a possible kidney transplant. Because he had been unlawfully present in the United Kingdom and was not treated as ordinarily resident, paragraph 4 of the NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) (England) Directions 2005 placed him in Group 2, behind persons ordinarily resident in the United Kingdom.

The Divisional Court dismissed his judicial review claim: [2017] EWHC 2815 (Admin). By the time of the appeal he had been granted limited leave to remain, but the Court of Appeal heard the case because of its public importance. The central issue was whether the residence-based prioritisation was ultra vires the statutory powers under the National Health Service Act 1977 and the National Health Service Act 2006.

1. Appeal dismissed. The appellant’s challenge was confined to ultra vires. Rationality, proportionality and Convention rights were not in issue.
2. The Secretary of State conceded that the appellant fell within section 1(1)(b) of the National Health Service Act 2006, despite his unlawful immigration status. The court expressed no view on the correctness or binding effect of the earlier analysis in R(A) v Secretary of State for Health [2017] UKSC 41 and R(A) v Secretary of State for Health [2009] EWCA Civ 225, because that issue was unnecessary to the result.
3. Section 272(7) of the 2006 Act regulated the manner in which an existing power could be exercised. It did not create or enlarge a substantive power. Similarly, section 7 could not authorise NHSBT to exercise a delegated function with a residence-based priority which the Secretary of State could not herself impose.
4. The court was doubtful that section 8, read alone, supplied the necessary power. A purposive construction was required so that delegation could not circumvent legal limits applying to the underlying function. It was unnecessary to decide that issue.
5. Organ transplantation fell within the Secretary of State’s functions under section 3(1), particularly services and facilities for persons suffering from illness and services required for diagnosis and treatment. Paragraph 7C of Schedule 1 confirmed the continuing responsibility to facilitate tissue and organ transplantation.
6. Following R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 and the reasoning in A, the section 3 duty left a broad area to the Secretary of State’s judgment. The duty to promote a comprehensive service was an aspirational target which might never be fully achieved because of financial and other resource constraints. The acute shortage of donated organs was therefore a lawful and important consideration.
7. The Secretary of State was entitled to judge that prioritising persons ordinarily resident in the United Kingdom over those not ordinarily resident was necessary to meet reasonable requirements. The express provisions concerning charges for persons not ordinarily resident did not impliedly restrict that discretion to clinical grounds.

• Court of Appeal (Civil Division) dismissed the appeal against the Divisional Court’s decision on 7 December 2018.
• Divisional Court of the Queen’s Bench Division, Administrative Court dismissed the judicial review claim on 9 November 2017: [2017] EWHC 2815 (Admin).