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The Divisional Court (Irwin LJ and Haddon-Cave J) dismissed an application for judicial review of the Secretary of State for Health’s system for allocating transplant organs.

The application was brought by A who suffers from end-stage kidney disease and is HIV positive.  A is also an illegal immigrant to the UK who has exhausted all his appeal rights.  Under the challenged system (contained in Directions issued and revised from 2005), candidates for transplantation are placed in one of two categories: group 1 contains those ordinarily resident in the UK; and group 2 contains all others.  It was accepted on both sides that ordinarily resident means lawfully resident and, if the Directions were valid, A therefore belonged in group 2 (with a very small chance of ever being allocated an kidney). 

A argued that the Directions were in ultra vires s. 1 of the National Health Service Act 2006 (“2006 Act”) (and its predecessors) which imposes a duty on the Secretary of State to continue the promotion of a comprehensive health service designed to secure improvement in the physical health of “the people of England”.  The superficially attractive argument that “people of England” means people lawfully in England was not available to the Secretary of State because of the provisions in the 2006 Act which permit charges to be imposed on those who are not ordinarily resident in the UK (but therefore are entitled to treatment). 

A argued that the Directions were an unlawful departure from the principle which underlies the whole 2006 Act: that NHS resources are allocated on the basis of clinical need. The Divisional Court accepted that s. 1 of the 2006 Act imposed only a target duty and the Secretary of State was entitled to distinguish between those lawfully and unlawfully in the country in relation to this uniquely limited resource.  

Ivan Hare QC appeared for the Secretary  of State. 

Click here to read the full judgment. 

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