Solidarity is a principle that underlies the English National Health Service (NHS). While intended to be comprehensive, since its inception financial constraints meant that limits have been placed on the availability of NHS health care. Health care has been rationed in a number of ways but English law demands that any such rationing policies by public bodies must allow for exceptions in special cases. When a patient makes an individual funding request (IFR) for such a treatment it is a question for the health authority to decide on the merits of the IFR whereas in any subsequent judicial review proceedings the court considers that decision in terms of its legitimacy, procedural propriety and reasonableness. To avoid judicial review of decisions health authorities are often inclined to accede to patients’ requests because litigation, apart from being costly and time-consuming for the authority, also sets new precedents. This has led to suggestions that solidarity is being eroded in the NHS since resources that are spent on such requests by patients mean disinvestment from other areas of the NHS. This paper argues that enabling individual choice may in effect support a collective commitment to a solidaristic health care system. Rather than encroaching on the principle of solidarity (intended) litigation by patients destabilises the health care system and leads to much needed change and reform. Not only do the potential ramifications of (intended) litigation go beyond the immediate consequences for the parties to the action, but the need to account for rationing decisions by the health authority in public makes the system accessible to broader interests. Patient treatment choice can thus be seen as an affirmation of a commitment to solidarity that is also supported by the increased emphasis on patients taking responsibility for their own health with the aim of reducing NHS costs.
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