Revisiting the competence question in judicial review of resource allocation

Judicial engagement with matters involving the allocation of scarce resources in respect of welfare services such as healthcare was traditionally regarded as problematic because of a perceived lack of competence to adjudicate on such issues. Yet, notwithstanding such concerns, judicial review of allocative decision-making has become a relatively common phenomenon in recent decades. In light of this development, this paper seeks to reassess the arguments that the judiciary is lacking in institutional and constitutional competence in this field. Drawing upon systems theory, it will argue that changes in the environment of health policy and ethics from which these cases arise should also cause us to question our previous assumptions about judicial (in)competence.