• In the case of  R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392, a decision to prohibit funding for a treatment involving an unlicensed drug, except where there are specific exceptional circumstances, was irrational since the policy could not be explained in any rational sense.

Facts of the Case

  • R was a stage 1 breast cancer patient who requested funding for an unlicensed drug called Herceptin.
  • The Trust refused the treatment, despite having sufficient funds for it, as their policy involved providing the treatment only in personal or clinical circumstances, which was not met by R.
  • R argued that the policy decision of the Trust was irrational and subsequently brought a judicial review claim based on this ground.

Issues

  • Was the Trust’s refusal to provide the treatment based on their policy irrational?

Held by Court of Appeal

  • The appeal was allowed given that the Trust’s refusal based on their policy was an unreasonable decision; refusal for funding in such a situation should be met with scrutiny due to its heavy impacts on life and death and the personal or clinical circumstances should not be considered unless it is possible to envisage such circumstances.

Sir Anthony Clarke M.R.

  • When deciding whether or not funding should be refused, steps must be taken in the form of “rigorous scrutiny” to ascertain this given its impact on life and death.
  •  “In these circumstances, as we think Mr Havers accepted, it is appropriate for the court to subject the decision to refuse funding for the treatment (and thus in practice the treatment) to rigorous scrutiny.” [56]
  • The Trust’s policy was considered to be irrational given that it would be taking into account factors which are irrelevant to such decision making; paying attention to a patient’s personal circumstances are not appropriate nor relevant to deciding whether funding for the unlicensed drug should be granted to benefit R.
  • “The non-medical personal situation of a particular patient cannot in these circumstances be relevant to the question of whether Herceptin prescribed by the patient’s clinician should be funded for the benefit of the patient. Where the clinical needs are equal, and resources are not an issue, discrimination between patients in the same eligible group cannot be justified on the basis of personal characteristics not based on healthcare.” [79]

Editor’s Notes

  • This decision highlights the robust decision making mechanisms that should be put in place when considering policies that contravene human rights principles.

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