This was an appeal by the claimant Ann Marie Rogers (R) from an order made by the Administrative Court dismissing her application for judicial review of Swindon PCT’s decision to refuse her application for funding in respect of treatment with a drug called Herceptin. R was 54 with 3 adult children and 2 young grandchildren. Following her diagnosis of breast cancer, she underwent a mastectomy and reconstructive breast surgery. She then underwent chemotherapy and radiotherapy. During this time it came to R’s attention that there was a type of breast cancer, known as HER2 positive, which could be treated by Herceptin, the trade name given to the drug trastuzumab by its manufacturer. R spoke to her consultant and was tested positive for this form of breast cancer. R asked whether she could pay for Herceptin whilst remaining an NHS patient and was told that she could not. R’s consultant agreed to treat her with the drug on a private basis. However after two courses of treatment, each of which cost £1,950, she could not afford to pay for her third course. R sought legal advice. Her solicitors were informed that Herceptin was not prescribed by the Trust, but it would review any application for treatment. An application was made but rejected by the Trust. Permission was granted for judicial review and an interim order was made by the court for the Trust to fund her treatment until the judicial review was heard by the Administrative Court. The first instance Court decided that the decision not to fund R’s treatment was not irrational and did not breach her human rights.
Swindon PCT’s policy on cancer treatments was guided by the Avon Somerset and Wiltshire Cancer Service (ASWCS). In cases of Herceptin treatment requests for early stage sufferers, ASWCS recommended that each individual application should be reviewed by the Clinical Priorities Committee (CPC) to ascertain if the patient’s case demonstrated any exceptionality. This advice formed the basis of Swindon’s policy on the matter; there was no mention of budgetary or financial restraints. In deciding whether to fund an “off licence” drug i.e. one not currently licensed by the National Institute for Clinical Excellence such as Herceptin, for early stage breast cancer, Swindon stated in its Clinical Priorities Policy that it would take into account all of the relevant evidence but would not take into account the cost of the treatment. This followed the guidance provided in a press release and a speech by the Secretary of State, that PCTs should not refuse to fund Herceptin treatment following a recommendation by a clinician, solely on the grounds of its cost. The question for the Court of Appeal was whether Swindon’s policy on Herceptin (and the decision which depended on it in R’s case) was arbitrary and/or irrational and unlawful or whether it was rational and lawful.
R’s Doctor could not distinguish her from the 20 or so other women in her position and therefore concluded that she was not an exceptional case. In R’s appeal to the Board of the PCT following its refusal to fund her treatment, the Board clarified that exceptionality for funding should be considered in the context of all women who met the eligibility criteria, rather than the population as a whole and that a poor prognosis could not be described as an individual exceptionality. R submitted that this policy was irrational because there was no rational basis upon which it could properly provide funding for some women and not others on the basis of exceptional circumstances.
The Court of Appeal held that such a policy would be rational in the strict legal sense provided it was possible to envisage what such exceptional circumstances might be. If it was not possible to do this then that would amount to a complete refusal of assistance and be irrational, since it was sought to be justified as a policy of exceptionality. R v North West Lancashire Health Authority ex parte A, D and G  applied. However, in the present case the Court could not identify any persuasive grounds for treating one patient who fulfils the clinical requirements for Herceptin treatment differently from others in the same category.
If the policy had involved a balance of financial considerations against a general policy not to fund “off licence” drugs and the healthcare needs of the particular patient in an exceptional case then such a policy would not be irrational. But this was not the case. Swindon had developed a policy which treated financial considerations as irrelevant. It therefore had funds available to treat all women within the eligible group whose clinician prescribed Herceptin. Yet its policy was to refuse funding save where exceptional personal or clinical circumstances could be shown. However, once it was established that all the clinical needs of patients were equal and resources were not an issue, discrimination between patients in the same eligible group could not be justified on the basis of personal characteristics not based on healthcare. There was no evidence put before the Court that one woman’s clinical need was greater than another. There was no rational basis for distinguishing between patients within the eligible group on the basis of exceptional clinical circumstances any more than on the basis of personal or social circumstances. The only reasonable approach would have been to have focussed on the patients’ clinical needs and fund all patients within the eligible group who were properly prescribed Herceptin by their clinician. That would not open the floodgates to those suffering from breast cancer because only comparatively few satisfied the criteria needed to qualify for the eligible group.
Swindon’s policy was therefore irrational and unlawful and its decision to refuse to fund R’s treatment was quashed. It was a matter for Swindon to reformulate a lawful policy upon which to base its future decisions in relation to Herceptin.
Comment: This important case shows how close this country’s legal system has come to providing for a right to healthcare once someone meets published eligibility criteria, whilst still clinging to the legal received wisdom that there is no RIGHT to healthcare, only a discretion on the part of the NHS to provide that which is chooses to provide, within available resources.
It is almost as if the judges are saying that if the NHS is not brave enough to admit that it rations treatment and services, then it cannot then pretend that it is making rational decisions by reference to incomprehensible references to exceptions, when none, in fact, can be rationally identified. The NHS can refuse to provide treatment or services, purely on the grounds of cost, but it is not politically attractive for it to do so, and DH pressure is always brought to bear on PCTs who take the legal framework at face value. In this case, Ms Rogers’ good fortune was that the PCT had been misled into explicitly excluding financial resources from its consideration as to who to provide the drug to, which meant that there were no other sensible considerations to weigh in the balance. This does not appear to be a case which provides as a general principle that PCTs cannot have policies about rationing available resources. The PCT would have been better off claiming that its policy was not a rigid rule if the general policy was not to spend beyond its allocated budget on particular kinds of drugs….
It will be interesting to see whether once there are national criteria in place for continuing NHS health care funding, government guidance to PCTs will advise them, explicitly, to state that all eligibility is dependent on available resources, despite a person’s qualifying under the criteria according to local professional clinical opinion….