The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy which treated financial considerations as irrelevant, but at the same time its policy is to refuse funding save where exceptional personal or clinical circumstances can be shown. There was no evidence that one woman in a group who might benefit might have a greater clinical need than another, and ‘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, let alone social, circumstances.’ Where fundamental rights are involved the court must subject the decision to rigorous scrutiny.
The court interpreted the decision in North West Lancashire: ‘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 any such circumstances then the policy will be in practice a complete refusal of assistance: and irrational as such because it is sought to be justified not as a complete refusal but as a policy of exceptionality.’
Judges:
Lord Justice Buxton, Lord Justice Brooke, Sir Anthony Clarke MR
Citations:
[2006] EWCA Civ 392, [2006] 1 WLR 2649
Links:
Statutes:
National Health Act 1977 16A, National Health Service (Functions of Strategic Health Authorities and Primary Care Trust etc) Regulations 2002
Jurisdiction:
England and Wales
Citing:
Cited – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
Interpreted – North West Lancashire Health Authority v A D and G CA 29-Jul-1999
A decision not to fund gender re-assignment surgery was operated as a blanket policy without proper regard for individual cases and so was unlawful as an effective fetter on the discretion which the Health Authority was obliged to exercise. A lawful . .
Cited – Regina v Warwickshire County Council, Ex parte Collymore 1995
The court questioned the over rigid application of a policy in a decision by the respondent. . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
Cited – Regina v Cambridge and Huntingdon Health Committee Ex Parte B CA 10-Mar-1995
A decision by a Health Authority to withhold treatment for a patient could be properly so made. It was not ordinarily to be a matter for lawyers. A Health Authority’s withholding of treatment, which might not be in a child’s simple best interests . .
Cited by:
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
Lists of cited by and citing cases may be incomplete.
Health, Administrative
Updated: 05 July 2022; Ref: scu.240360
