Rose, R (on the application of) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin)

Ms Elizabeth (‘the Claimant’) suffered from a severe form of Crohn’s disease, and her condition was deteriorating significantly. Her doctors at King’s College Hospital recommended that bone marrow transplantation and chemotherapy was carried out, with the expectation of bringing the disease into remission. However, it was a probable outcome of this therapy that the Claimant would have been rendered infertile and suffered an early onset of the menopause. As the Claimant wished to secure the best chance of having her own genetic children, she sought NHS funding for egg freezing before the chemotherapy began. Thanet Clinical Commissioning Group (‘the Defendant’ or ‘the CCG’) later refused the Claimant’s application for funding on more than one occasion. The Claimant was in receipt of Disability Living Allowance and Income Support, and could not afford to pay for the Assistive Reproduction Technique (‘the ART’).

The CCG’s policy was not to grant funding for the ART unless the applicant had special factors that exceptionally justified a departure from this policy (the ‘exceptionality policy’). However the CCG believed that the Claimant’s factors did not sufficiently distinguish her from a group of similar patients, and funding was refused.

NICE had issued guidance, under a general power in the NICE Regulations, that the ART should be funded. Nonetheless, because the NICE Regulations said nothing about any duty on CCGs to comply with this type of guidance, the CCG failed to appreciate that the guidance had a legal significance for the exercise of its discretion, based on established public law principles.

In October 2013, the CCG adopted a new policy to run from April 2014 which, despite the Guidance, posited that the ART should be refused unless extenuating circumstances were raised. The Claimant sought judicial review on a number of grounds which called into question both the decision not to provide her with funding for the ART, and the policy in general.

The Court held that the strongest support for the Claimant’s case was in the decision of Dyson J in ex parte Fisher, where it was held that the relevant guidance (national guidance issued by the Secretary of State concerning the managing into entry of Beta-Interferon) did not confer on health authorities an absolute duty to comply. However, importantly, in public law terms there was a duty to take it into account when discharging their functions. The Respondents in ex parte Fisher were under a duty to give serious consideration to the relevant Circular and, if they decided to depart from it, provide clear reasons for doing so. Further, ex parte Fisher held that a decision not to follow national policy in the form of guidance from the Secretary of State was only lawful if there was some ‘special factor’ which ‘exceptionally justified departure’, and that mere disagreement with the policy was not enough. By applying this judgment to the immediate case, the Court found that no basis or reasoning on the grounds of exceptionality for not following the guidance had been put forward by the CCG. The issue in this case was whether CCGs had legitimately disagreed with NICE on medical matters, however the CCG’s sole basis for not following NICE’s recommendation was that it had simply disagreed.

The Defendant however submitted that in the immediate case the evidence base was not sufficiently strong, and that the NICE guidelines were not national policy. The Court held that NICE was a national body and its guidelines were intended to have nationwide application. Regarding the ‘evidence base’ submission, the Court held that the NICE recommendations were based solely on an evaluation of the evidence, health benefit and cost. As a result, they concludedd that the evidence base was sufficiently strong. This argument was reinforced by the fact that NICE had not already explicitly stated that the evidence base was weak.  This was significant because NICE had explicitly stated in previous recommendations whether the evidence base was lacking in substance. The fact that this guidance did not include such a disclaimer, as was included in the 2004 NICE recommendation that oocyte cryopreservation be funded, was a clear indication of the increased strength of the evidence base over time.

The judge found that even if ex parte Fisher had been distinguishable from the present case, he would in all the circumstances have reached the same conclusion. On normal public law grounds, the CCG had not advanced a valid reason for disagreeing with the Guidance and so the policy was not a rational decision.

The Claimant also argued that the CCG had been guilty of direct discrimination on the ground of gender, contrary to section 13 of the Equality Act 2010. Here, it was argued that the CCG was applying a criterion which was inherently gender-based, and the motive for the discrimination, being actual or perceived clinical grounds, was irrelevant. However, the Court held that Mr Hyam’s argument was based on the fallacy that because only women produce oocytes, they must be treated in the same way as men who only produced semen. Although gender was the sole determinant of the production of gametes, it was rejected that differentiating between gametes in this context meant the same as differentiating between men and women. There were obvious, relevant biological differences between gametes. Moreover if, for example, there was solid medical evidence that the cryopreservation of sperm was highly effective whereas oocytes could not be successfully cryopreserved, the logic of the Claimant’s argument would have been that men and women would still have to be treated in exactly the same way. The Court also found that the CCG did not owe any section 149 duty in relation to its exceptionality policy (i.e. the policy that if the applicant had special factors, it could have exceptionally justified a departure from the CCG’s policy not to grant funding for the ART).