R (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392

Ann Marie Rogers had early-stage breast cancer and sought NHS funding for Herceptin, which was not then licensed for that particular use. Her primary care trust would fund the treatment only in exceptional circumstances, despite not relying on lack of resources as the reason to refuse it. Her clinicians supported treatment, but the trust concluded that her circumstances were not exceptional. Rogers challenged the policy and refusal as irrational. The Court of Appeal examined whether the trust could identify a rational basis for distinguishing her from other clinically eligible patients.

Whether the Primary Care Trust’s exceptional-circumstances policy for Herceptin funding was rationally defined and applied, given its decision not to rely on financial constraints.

The Court of Appeal allowed Rogers’s appeal and held the refusal irrational in the context of the trust’s policy. The trust was prepared to fund Herceptin in exceptional circumstances, did not rely on resource scarcity, and could not identify a rational clinical distinction within the eligible patient group that justified the exclusion. Non-medical personal characteristics did not supply a legitimate basis for differentiating patients with equal clinical needs in those circumstances. The seriousness of the consequences warranted rigorous scrutiny. The decision was not a general order that every patient receive any requested medicine. It required a coherent, legally defensible policy and decision within the particular treatment setting before the court.

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.

Rogers concerns an incoherent exception policy in a treatment group where the trust did not rely on scarce resources. It is not a general entitlement to every unlicensed or unfunded medicine. The absence of a rational way to distinguish patients with equal clinical needs was decisive. The seriousness of the health consequences justified close scrutiny, but the court did not assume the role of medical commissioner. A different resource-based policy would require a separate analysis rather than automatic application of this result.