Public Law Update: Healthcare rationing

4 August 2011

In an important judgement delivered at the end of July, the Court of Appeal has dismissed a challenge to provision in a Primary Care Trust’s (PCT) Individual Funding Request (IFR) policy that excluded any consideration of non clinical factors when the PCT was deciding whether, exceptionally, to fund treatment for an individual where that treatment fell outside the PCT’s normal funding criteria. The case highlights the acute problems faced by both patients and PCTs where funding is insufficient (as is inevitably the case) to pay for all clinically justified treatment. The effect of the judgment is to reinforce the difficulties patients face in challenging treatment decisions.

Mr Condliff is morbidly obese, as a result of diabetes, and has co-morbidities including renal impairment, hypertension and obstructive sleep apnoea. One possible treatment for his condition is laproscopic gastric by-pass surgery, but this was only available as a routine operation in his PCT area for those whose BMI was more than 50 – and Mr Condliff’s BMI is a little in excess of 40. Accordingly, and with the support of his GP and specialists who had been treating him, he made an application for exceptional funding of the surgery under his PCT’s IFR policy. His application was unsuccessful.

The PCT’s IFR policy provided that: “In reaching a decision as to whether a patient’s circumstances are exceptional, the Panel is required to follow the principle that non-clinical or social factors including social value judgments about the underlying medical condition or the patient’s circumstances are never relevant”. The policy also specified that “social factors" included “age, gender, ethnicity, employment status, parental status, marital status, religious/cultural factors”. The essential reason given for excluding social factors was that if they were included it would be very difficult for the PCT to make funding of treatment decisions that were fair to all the patients within its area. In challenging the refusal of his application under the IFR policy, Mr Condliff sought to rely on his rights under article 8 ECHR and the central question considered by the Court of Appeal was whether article 8 made it unlawful to adopt an IFR policy that excluded any consideration of non clinical factors.

Article 8 provides for a right to respect for private and family life. These are very broad concepts  and it was acknowledged by Lord Justice Toulson, who gave the leading judgement in the Court of Appeal, that “there is no doubt that Mr Condliff’s state of health is having a seriously adverse effect on his private and family life in the most basic ways”. However, it did not follow that the IFR policy involved a lack of respect for Mr Condliff’s private and family life – what the policy did was simply to allow the PCT to apply its resources for the purpose for which they were intended in an intentionally non discriminatory way. Having reached that conclusion, Lord Justice Toulson reviewed the domestic and Strasbourg cases to see whether there were any decisions that suggested his conclusion was wrong – and found there were none. His view was that the authorities demonstrated that article 8 cannot “properly be relied on as giving rise to a positive duty to take into account welfare considerations wider than the comparative medical conditions and medical needs of different patients”.

For PCTs (and, in the future, the new Clinical Commissioning Groups) the Court of Appeal’s decision brings a welcome degree of certainty about IFR policies and priority setting in treatment decisions. For patients, for practical purposes, it excludes reliance on article 8 ECHR as a ground for challenging such decisions, leaving only the traditional – and difficult to establish – judicial review grounds of challenge.

For more information, please contact: Adam Chapman

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