Dignity: A relevant normative value in ‘access to health and social care’ litigation in the United Kingdom?

Abstract

The ‘rationing’ of health and social care within the Kingdom (UK) is an accepted reality today. As such, a growing body of case law has developed giving clear guidance on the legal principles and rights that the UK Courts look to when questions of availability and access to health and social care are brought before them. The case of McDonald v UK however highlights how limited the approach to justiciability on rationing issues is within the courts particularly when the context of a growing elderly population and finite resources is considered. While the courts in the McDonald litigation were prepared to review the procedural aspects associated with the decision making on the care provided, they were reluctant to assess in substantive terms the impact of the decision on the individual. Although dignity was acknowledged as being relevant throughout the various stages of the litigation, there was limited discussion of the concept. This chapter questions whether fuller consideration could have been given to the concept of dignity as understood within the disciplines of health and law, including Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In spite of the relationship between health and dignity being clearly acknowledged within the international law on a right to health, there is limited guidance on what dignity means within the jurisprudence on Article 12 ICESCR. However, empirical research on both health and law has the potential to develop the concept as a standard in law. The concept has been increasingly referred to within professional guidance, empirical research and within a growing body of literature and case law. This represents a body of evidence which the courts could refer to in the context of access to health and social care litigation, and which they can in turn contribute to by embedding dignity as a value that ought to be considered in decision-making on access to social and health care entitlements.