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RATIONING

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R v Cambridge HA ex p B [1995] 2 All ER 129: B was diagnosed with leukaemia. Had two bouts of treatment but returned again. NHS doctors thought that was no longer appropriate to give treatment other than palliative care. Father sought second opinion of private doctor (USA) who was happy to treat, with the 10-20% chance of success. NHS refused to fund the PS75,000 worth of treatment at the request of the father. B applied for JR. HA claimed it had made its decision with reference to (a) whether course of treatment was appropriate, and thought not in best interests (b) guidance given in respect of experimental treatment (c) whether the expenditure was an effective use of resources. Sir Bingham: o Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. o This case is an attempt, wholly understandable but none the less misguided, to involve the court in a field of activity where it is not fitted to make any decision favourable to the patient; claim dismissed.

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R (Rogers) v West Sussex Primary Care Trust [2008] EWHC 2252 (Admin): Question as to whether policy on funding Herceptin treatment was unlawful. Administrative court held not on the basis that the decision was not irrational and no human rights were breached. Current policy was to fund treatment where referred by clinician only. Clarke MR: o A policy of withholding assistance save in unstated exceptional circumstances will be rational in the legal sense provided that it is possible to envisage, and the decision-maker does envisage, what such exceptional circumstances might be. If it is not possible to envisage then the policy will be in practice a complete refusal of assistance: and irrational because it is sought to be justified as a policy of exceptionality. o The non-medical personal situation of a particular patient cannot in these circumstances be relevant to the question 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. o The PCT has not put any clinical or medical evidence before the court to suggest any clinical distinction could be made. In these circumstances there is 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 circumstances. o Once the PCT decided (as it did) that it would fund Herceptin for some patients and that cost was irrelevant, the only reasonable approach was to focus on the patient's clinical needs and fund patients within the eligible group who were properly prescribed Herceptin by their physician. This would not open the floodgates because only comparatively few satisfy the criteria so as to qualify for the eligible group.

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R (Otley) v Barking & Dagenham NHS PCT [2007] EWHC 1927 (Admin): Patient had cancer in liver, which had been unresponsive to treatment. Found that a drug was licensed in the USA, which P managed to get hold of and fund several courses of treatment for herself. The outcome was positive, although evidence suggested it would not cure her. Request to continue funding the drug by the NHS was denied. Mitting J: o Q: whether or not the reasoning and decision of the Panel was rational and so lawful on Wednesbury grounds. o Reasoning was flawed on the following grounds:
? Enquiry as to how often it had been prescribed before was irrelevant;
? There were no other treatments available to P and did not take this into account;
? On any view this case was an exceptional one;
? Though resource allocation is important cannot be a decisive factor.

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R (Ross) v West Sussex Primary Care Trust [2008] EWHC 2252 (Admin): Patient had cancer. He requested the use of a new drug (not yet assessed by NICE), which, if refused only left him with the option of palliative treatment. That is because he could not take the normal prescribed drug. Grenfell J: o Each PCT is entitled, provided it does so rationally, logically and lawfully, to set its own policy for making such difficult decisions. It is a matter for the PCT how it allocates its resources, so long as it does so reasonably, which will involve difficult and agonizing judgments as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. o The PCT has acted irrationally if it reached a conclusion which no reasonable authority could have made; the more substantial the interference with human rights, the more the court will require by way of justification be; the Courts must subject their decision to anxious scrutiny because the Claimant's life is at stake o It would make no sense for a PCT simply to ignore clinical efficacy and cost effectiveness once a patient comes within the category of exceptional circumstances. However, once an exceptional case is made out, particularly where matters of extending life are concerned, that logically and rationally a PCT should take a less restrictive approach to cost effectiveness than when considering the case for funding a drug. o Thought in this case the policy was irrational as the 'exceptionality' policy appeared to be one of no treatment.

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R (Booker) v NHS Oldham [2010] EWHC 2593 (Admin): P was a ventilator dependent tetraplegic following a car crash. As a result of the settlement from those proceedings payments were made for the continuing care of P. As a result, the PCT decided that it would no longer cover the cost of care on the basis that she had no reasonable requirement by reason of the terms of the settlement. Issue as to whether breached duty to give care. Pelling J: o There is no clear distinction that can be drawn by a PCT in the position of this PCT between a person who is independently wealthy or is insured in relation to medical expenses and someone who has sufficient means to provide for his or her care privately by reason of what has been recovered in damages. o In reaching a decision the PCT is bound to have regard to the NHS Constitution. It is therefore bound to have regard to the principle that access to NHS services is based on clinical need not on an individual's ability to pay and that a person who is otherwise eligible for treatment is entitled to receive it free of charge. o Ultimately the only basis for refusing treatment to this Claimant but not to another is the presumed ability of this Claimant to recover the costs of paying for her care herself by reference to an indemnity to be obtained pursuant to the safety net undertakings: that was not a position it could lawfully or rationally adopt. o If the state is to be relieved of the cost of caring for the victims of torts then the remedy lies in primary legislation which permits that cost to be recovered by the NHS or its constituent bodies direct from the insurers of the tortfeasor concerned rather than by individual decision-making of the sort that has occurred in this case.

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R(Condliff) v North Staffordshire PCT [2011] EWHC 872 (Admin): Application for gastric bypass refused for morbidly obese man. Policy of the PCT was only to offer surgery to those with a BMI over 50, but C only had a BMI of 40. Suffering from serious effects of diabetes which had restricted life significantly. Was also incontinent. If he had been under Stoke PCT he would have been eligible for surgery. Challenge on the basis that the policy refused to take into account social factors. Walksman QC: o Generally speaking when a state's public body (like a PCT) decides how to allocate its medical resources among those who seek them Article 8 is not engaged. It has a wide margin of appreciation in such an exercise. A refusal to fund treatment to an applicant is not an interference with his Article 8 rights in breach of Article 8(1) nor is there any positive obligation to provide it. o The Social Factors Exclusion, as part of the PCT policy of medical resource allocation, amounts to a fair balance between the individuals seeking treatment and the medical requirements of the community as a whole.
? Also thinks that satisfies proportionality requirements.
? Although thinks that this kind of enquiry is wrong because there is no obligation to treat. o Does find a breach of duty to give reasons but refuses to quash the decision on this ground.

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R(C) v Berkshire PCT [2011] EWCA Civ 247: Man (gender identity disorder) began living as woman and undertook hormone therapy. Breasts did not develop in the way desired and thus A made application to the PCT for it to pay for breast augmentation surgery. It was suggested that if not done then would fail to satisfy the psychological issues of A's disorder. Hooper LJ: o Notes the problem of raising a claim on basis of discrimination as all choices involve discrimination of some form. Thinks that acceptable so long as choices are made on the basis of relevant characteristics. o The court is not appropriately placed to make either clinical or budgetary judgments about publicly funded healthcare: its role is in general limited to keeping decision-making within the law. o The conclusion of the Committee that the exceptional circumstances proviso did not apply was a conclusion which the Committee was entitled to reach and is not irrational.

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AC v Berkshire West PCT [2010] EWHC 1162 (Admin) : Man (gender identity disorder) began living as woman and undertook hormone therapy. Breasts did not develop in the way desired and thus A made application to the PCT for it to pay for breast augmentation surgery. It was suggested that if not done then would fail to satisfy the psychological issues of A's disorder. Admin Court Judgement of Justice Bean: o To assert that there is no discrimination between a transgender woman denied treatment specific to that condition which is also denied to a natal woman because they have been treated 'the same way' is simply to fail to recognise the very feature which leads to discrimination. o However, was satisfied that the Defendants had due regard to the need to eliminate discrimination against transsexuals and to the need to promote equality of opportunity between transsexuals and non-transsexuals. Their gender dysphoria policy was drafted with great care and after extensive consultation.

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Y Denier, 'Mind the gap! Three approaches to scarcity in heath care' (2008) 11 Health Care and Philosophy 73: o The issues in healthcare derive their relevance from the condition of scarcity; we do not have sufficient resources to meet existing demand. o A healthcare system is roughly organised in accordance with three goals: prevention, cure and care.
? As such healthcare involves issues of social justice;
? This is generally conceived in terns if fair treatment in light of what is owed, and equality of access.

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