the claimant, a morbidly obese man, made a funding request to the trust for gastric surgery. This was refused because he did not meet the trust’s policy of offering funding to people who had a body mass index which exceeded a certain level. The claimant sought judicial review of the trust’s decision on the ground, inter alia, that it had breached his right to respect for his private and family life under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The court was asked whether article 8 of the European Convention on Human Rights makes it unlawful for a Primary Care Trust (PCT) to adopt an Individual Funding Request (IFR) policy by which all such requests are to be considered and determined exclusively by reference to clinical factors.
Held: The application was dismissed. Article 8 of ECHR did not give rise to a positive duty on a statutory health care provider to consider non-clinical, social or welfare considerations wider than the comparative medical conditions and medical needs of different patients when deciding on the allocation of funding for medical treatment.
Toulson LJ said of section 3 of the 2006 Act, ‘this is a public law duty and not a direct duty owed to individual patients’.
Judges:
Maurice Kay VP, Hallett, Toulson LJJ
Citations:
[2011] EWCA Civ 910, [2012] PTSR 460, (2011) 121 BMLR 192, [2011] HRLR 38, [2011] Med LR 572, [2011] ACD 113
Links:
Statutes:
National Health Service Act 2006 3, European Convention on Human Rights8
Jurisdiction:
England and Wales
Citing:
Appeal from – Condliff, Regina (on The Application of) v North Staffordshire Primary Care Trust Admn 7-Apr-2011
The patient sought judicial review of the decision not to fund laparoscopic gastric by-pass surgery. He said that the policy by which all such requests are to be considered and determined exclusively by reference to clinical factors, infringed his . .
Cited by:
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Health Professions
Updated: 16 September 2022; Ref: scu.442230