Into the matrix and beyond: seeking an understanding of problem priority-setting cases in the English courts

Abstract

Drawing upon and developing Chris Newdick’s work on legal regulation of resource allocation in healthcare, this article analyses a series of problematic judicial review cases in the English courts in which judges appear to move away from scrutiny of procedure towards a form of review that is much more substantive in nature. The ‘priority-setting rights matrix’, which Newdick developed in later work, enables us to distinguish these cases from others, calling into question the claim that the jurisprudence in this field has evolved in a linear fashion. However, while the matrix has considerable value as a classificatory tool, it requires supplementation if we are to understand why judges respond differently in distinct scenarios. To this end, the article explores potential reasons for judicial preference for individual interests over collective priority-setting goals, which may explain the shift away from procedural review which characterises these cases.