Priority-Setting and Public Law: Potential Realised or Unfulfilled?

Abstract

Diane Longley's work draws attention to the potential of public law to articulate procedural standards which, by structuring decision-making on the allocation of scarce healthcare resources, can contribute to the legitimation of the process of priority-setting. This article assesses the importance of this judicial function in the light of recent developments in health policy and analyses the extent to which courts may be said to have performed it successfully. It focuses in particular upon the decision of the Supreme Court of Canada in Auton v British Columbia (Attorney General), but in so doing seeks to draw lessons and to identify issues which are pertinent elsewhere, notably to English law.