Court of Appeal holds organ donation policy prioritising patients ordinarily resident in the UK is lawful


Re: R (BA) v Secretary of State for Health and Social Care [2018] EWCA Civ 2696

Considering the NHS Blood and Transplant (Gwaed a Thrawsblaniadau’r GIG) (England) Directions 2005, the Court of Appeal held that the prioritisation of organs for transplant on the basis of a patient’s ordinary residence in the UK rather than clinical need are not ultra vires the National Health Service Act 2006.

The appellant was a Ghanaian national who needed a kidney transplant. The 2005 Directions prioritise kidneys and other organs for transplantation on the basis of ordinary residence in the UK. As he is not ordinarily resident in the UK, he was placed in Group 2, and as such had no real prospect of receiving a transplant. The appellant contended that the 2005 Directions were ultra vires the National Health Service Act 2006 (or its predecessor the National Health Service Act 1977). The parties agreed that there was no express power in the 2006 Act enabling the 2005 Directions to be made: the issue was whether one could be implied, and whether such an implied power would contravene the general duty imposed on the Secretary of State in s 1 of the 2006 Act, to promote in England a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and in the prevention, diagnosis and treatment of illness.

The Court of Appeal held that the power to make the 2005 Directions derived from s 3 of the 1977 Act. This did not contravene s 1. Further, it was reasonable for the Secretary of State to prioritise the transplantation of kidneys in this way. There are not enough donated organs for all the people who need them in the UK, and donor expectations are that priority will be given to fellow citizens or at least those ordinarily resident in this country.

Helen Mountfield QC and Sarah Hannett acted for the appellant patient instructed by Louise Whitfield at Deighton Pierce Glynn.