R (on the application of Colin Ross) v West Sussex Primary Care Trust [2008] EWHC 2252 (Admin)

Mr Ross (R) initiated a judicial review against the refusal by the defendant PCT to provide a drug to treat his cancer, multiple myeloma. Following complications which had resulted in him developing intolerable peripheral neuropathy his consultant had stopped his previous drug treatment regime and recommended a drug not usually available to NHS patients within the PCT’s area. The PCT’s review panel initially refused to fund this new treatment, despite recognition that without it R’s life expectancy would be limited, on the basis that the evidence suggested it was neither clinically efficacious nor cost effective and furthermore that R’s need was not exceptional within the meaning of the PCT’s in-house policy. The matter was considered by the PCT’s appeal panel and upheld. Following this R submitted a fresh report from a leading expert setting out that his case was exceptional. A fresh review panel was convened, but they also dismissed R’s case on the basis that there was no new evidence regarding the exceptional nature of his case.

Mr R challenged the refusal on the basis that the panel’s decision was based on a fundamental misunderstanding of his case as well as a misconception of the PCT’s exceptionality policy. Further he argued that the PCT’s policy was in itself unlawful as it required a test of exceptionality over and above the ordinary meaning of the word. He also submitted that the PCT panel had adopted an irrational approach to the principles of clinical efficacy and cost effectiveness.

The Court upheld R’s first argument, finding that the PCT’s policy (which required a refusal of funding where a patient was “representative of a group of patients”) unlawful. This test was not one of exceptionality but rather one that would require a patient to prove s/he was unique as it would be possible for the PCT to refuse funding if the patient could be liken to another. In R’s case this had meant that the panel had failed to understand the exceptional nature of his case, namely, that it was not just that he suffered neuropathic pain with other drug treatments, but that the nature of the peripheral neuropathy made continuation of this treatment impossible. This was within the ordinary meaning of exceptional. Therefore the decision to refuse funding was flawed and, on the evidence before the panel, should have been overturned.

The Court accepted that, even after a finding of exceptionality, the PCT would still need to consider clinical efficacy and cost effectiveness before agreeing funding. It
advised however, that where exceptional cases were made out, particularly where the issue of extending life was concerned, PCT’s should take a less restrictive approach to cost effectiveness. In this instance the panel had given undue weight to the survival rates of patients given the drugs, it had not given proper consideration to the evidence setting out the positive effects of treating R with the drug and, the judge commented, ought to have concluded funding would be clinically efficacious based on the report of the expert presented within R’s original application.  The Panels reliance on data re the manufacturers supply cost was also criticised, because it had not also considered the effectiveness of the drug, the length of proposed treatment, the increase in life expectancy for the patient or even the fact that it would not have to continue to provide R with other life prolonging but expensive treatments.  The Judge highlighted that additional costs would only arise if R responded well to the treatment thus making it both clinically and cost effective.

The Court therefore held that the PCT had acted irrationally in refusing the treatment as this was a conclusion that no reasonable authority could have made. R (on the application of Rogers) v Swindon NHS Primary Care Trust (2006) EWCA Civ 392, (2006) 1 WLR 2649 and E v Secretary of State for the Home Department (2004) EWCA Civ 49, (2004) QB 1044 applied.

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