Rationing policies necessarily discriminate, as they must identify bases on which to discriminate between patients in order to prioritise. Treatments may provide a greater benefit to some people than others and this may be a morally relevant difference that justifies discrimination. But it is difficult to identify when a reduced capacity to benefit from treatment is a sufficient basis deny a person access to treatment. We argue that a clearer test is required to hold governments to account. Discriminatory policies should be assessed by incorporating the principle of utility into the proportionality test. This would mean that discriminatory policies could only be justified if the benefit to the community in discriminating outweighed the cost to the individual of being discriminated against.
Keywords: discrimination; egalitarianism; human rights; proportionality; rationing; utilitarianism.