R v Cambridge Health Authority, ex parte B (a minor)

In judicial review of a health authority’s refusal to fund treatment, the court determines legality, not the merits of medical or resource-allocation decisions. A health authority may take account of limited resources, the treatment’s clinical prospects, its experimental character and the suffering involved. It need not demonstrate that funding one patient would cause an identified patient to go without treatment, or produce its accounts to justify the allocation. The authority may assess a proposed treatment as a whole where its stages are conditional but form one treatment strategy. A decision is not unlawful merely because the decision-maker did not expressly record the patient’s wishes, where the circumstances show that those wishes were plainly understood and considered.

A child suffering from recurrent leukaemia sought judicial review of the Cambridge Health Authority’s refusal to fund further intensive chemotherapy and, if remission followed, a second bone marrow transplant. Medical opinions differed, but the proposed treatment was regarded by most advisers as having a very small prospect of success and by some as experimental. The Authority relied on clinical advice, the treatment’s likely suffering, Department of Health guidance on unproven treatment, and the demands of limited health-service resources.

Laws J quashed the refusal, criticising the treatment of the family’s wishes, the description of the treatment as experimental, the generality of the resource evidence, and the treatment of the proposal as a single expenditure decision. The issue on appeal was whether those criticisms established that the Authority’s decision was unlawful.

1. Appeal allowed. The order of Laws J quashing the Authority’s decision was set aside. The Authority had acted within its powers and had not acted unreasonably in the legal sense.
2. The court’s function was confined to reviewing the lawfulness of the decision. It was not for the court to decide the likelihood that the treatment would work, assess competing medical judgments, or substitute its own view of how the Authority’s resources should be allocated. The gravity of the child’s condition required the decision to be treated with the utmost seriousness, but did not enlarge the court’s constitutional function.
3. The Authority was entitled to consider the treatment’s limited prospects of success, its experimental or frontier character, and the suffering it would cause. The description of the treatment as experimental was open to it on the evidence.
4. Limited resources were a legitimate consideration. The Authority was not required to identify a particular patient who would lose treatment, produce its accounts, or demonstrate a precisely quantified financial displacement before the court could uphold its decision.
5. The two stages of the proposal were conditional, but formed one process. It was lawful to decide whether to embark on the process by considering the likely need for the second stage if the first succeeded, rather than treating the initial expenditure in isolation.
6. The Authority had plainly been aware of the family’s urgent wish to obtain treatment. The absence of an express statement in the decision-maker’s evidence that the wishes had been taken into account did not establish that a material consideration had been ignored.
7. The President and Lord Justice Simon Brown agreed with the Master of the Rolls. The appeal was allowed, with legal aid taxation of the appellant’s costs.

1. Court of Appeal (Civil Division): R v Cambridge Health Authority, ex parte B (a minor) [1995] EWCA Civ 43. Appeal allowed and the order quashing the Authority’s decision set aside.
2. Queen’s Bench Division: Laws J quashed the Authority’s refusal to fund further chemotherapy and a possible second bone marrow transplant. No citation for that decision is stated in the judgment.