Thursday, 23 October 2008

Here it is ...

The book that gives this blog its name was published today. A Tendency to Laugh and Sing collects together more than 50 of my essays, lectures and letters on mental health law and in the process, addresses some of the most contentious issues of the day. The pieces, which first appeared in publications such as The Times, the New Law Journal and the Journal of Mental Health Law, are about such things as seclusion, the Bournewood case and the reform of the Mental Health Act. Amongst many other things, they look at re-detention following discharge, the rights of incapable detained patients and the statutory immunity from suit, and one of them asks the question: what is a hospital? The book will be of great interest to anyone who is subject to or works with the Mental Health Act, and to lawyers, academics, clinicians and policy-makers. A Tendency to Laugh and Sing is available from the Northumbria Law Press for £24.99 (plus £4 postage and packing). Order your copy here.

Wednesday, 8 October 2008

While we unburthen'd ...

Health care resources are limited and NHS bodies are often faced with very difficult decisions. In another case about the funding of cancer treatment, the High Court has clarified the parameters within which those decisions must be made.

What we knew already

The courts have long been reluctant to intervene in decisions about the allocation of health care resources. (See, for example: R v Cambridge Health Authority, ex parte B [1995] 1 WLR 898; R v North West Lancashire Health Authority, ex parte A [2000] 1 WLR 977; R (Rogers) v Swindon PCT [2006] EWCA Civ 392.)
  • Generally, it is for funders to decide how they will allocate their resources.
  • It is almost impossible to challenge a decision to refuse funding where that decision took into account financial constraints and the particular circumstances of the individual patient.
  • Where, however, life and death is in issue, the courts will submit the decision making process to rigorous scrutiny.

With regard to decisions about exceptions, some other things were also clear.

  • Funders may have a policy only to fund treatments in exceptional circumstances.
  • Any such policy must, however, genuinely recognise that there might be an overriding clinical need, and require each funding request to be considered on its own merits.
  • Both the policy and the decision-maker must be able to envisage what exceptional circumstances might be. If they do not, the policy will be unlawful: although it has been justified as one of exception, it will in fact operate as a complete refusal of funding.

This case

The new case is R (Ross) v West Sussex PCT (High Court, 10 September 2008). The claimant, Colin Ross, suffers from multiple myeloma and his clinicians want to treat him with a comparatively new drug, Lenalidomide. Other drugs have given him peripheral neuropathy and the court was told that if Mr Ross cannot be treated with Lenalidomide, palliative treatment will be his only option. When West Sussex PCT refused funding, the matter went before a review panel and then an appeal panel. There was evidence that the two panels had misunderstood the effectiveness of Lenalidomide and wrongly calculated its value-for-money, but it was the PCT’s exceptions policy that was at the heart of the case.

Taking exception

The policy began with a dictionary definition of ‘exceptional’, which, it said, means “a person or thing or case to which the general rule is not applicable”. It went on to say that for his circumstances to be exceptional, and for funding to be awarded to him: [a] there must be something about a patient to make him “significantly different to the general population of patients with the condition in question”; and [b] this requirement would not be satisfied where in truth, the patient was merely representative of a wider group. The court said these conditions had led the two panels into error.

The panels had taken the view that the neuropathic side effects from which Mr Ross suffered were well recognised and did not make him exceptional; rather, he was merely one member of a broader class of patients. But the court said this decision demonstrated that the policy was unlawful.

Despite its claim, this was not a policy for exceptional cases, because a person was automatically disqualified if he could be likened to another: in order to gain funding, a patient would have to show, not merely that he was exceptional, but that he was unique.

This was an impossible task, not least because it would always be possible for another patient to emerge who was comparable. It was no coincidence, the court felt, that West Sussex PCT had not approved a single application for funding of Lenalidomide.

The panels had failed to appreciate that even if his neuropathic side-effects did not make Mr Ross exceptional, the implications of those side-effects might: they had robbed him of the only other treatment that might have saved or extended his life.


A decision to refuse funding for medical treatment will not be unlawful simply because its implications could be grave. But those implications will entitle a court to look more closely at the decision than it might otherwise have been prepared to do. Clearly, the NHS cannot be expected to fund every treatment that science devises, and in deciding where to draw the line, it may have regard to its own resources and look for exceptional circumstances. In explaining what those circumstances might be, however, funders will have to make sure that their policies are not so specific as to exclude from treatment everyone who would benefit from it.