Exceptional Circumstances Schemes and the Social Factors Exclusion in Healthcare Rationing

Abstract

In 2011 Pharmac, New Zealand’s public agency charged with prioritising pharmaceutical medicines, introduced a new Exceptional Circumstances scheme which provided for the first time that a patient’s social circumstances would not be considered in determining exceptional circumstances for funding purposes (a “Social Factors Exclusion”). Why might an agency which determines access to a rationed pool of money wish to explicitly rule out of consideration patients’ social circumstances and the non-health related outcomes of treatment as irrelevant altogether? Pharmac’s new scheme is outlined, as well as the trend for public bodies in England and Wales making equivalent decisions to include such a provision as ‘best practice’ in their policies. The distinction between medical and social factors is attempted. The article analyses the ethical acceptability of including (or excluding) judgments of a patient’s value to others and society in decisions rationing healthcare, and analyses the lawfulness of doing so in both jurisdictions, focusing on English decisions, the only jurisdiction to consider the issues to date. Finally, the article considers how courts might respond to a key unresolved issue in both England and New Zealand, that a Social Factors Inclusion constitutes unlawful discrimination. It is suggested that the preferable policy formulation is that personal factors should not be given equal weighting to clinical factors in exceptional circumstances schemes, and that courts should defer to the public agency to determine its exceptional circumstances policy in this respect, provided it undertakes thorough consultation on the matter.