R v Cambridge Health Authority, Ex parte B

Judicial review of a health authority’s treatment-funding decision concerns lawfulness, not clinical or financial merits. The court cannot substitute its own assessment for that of the authority charged with allocating healthcare resources.

An authority may weigh clinical advice, the experimental nature and prospects of proposed treatment, the suffering it may cause, and the effective use of finite resources. It need not produce detailed accounts or identify a particular patient who would lose treatment if the requested funding were provided. A decision-maker need not expressly recite a family’s wishes where the circumstances show that those wishes were fully understood and considered.

B, a seriously ill child, had relapsed after chemotherapy, irradiation and a bone-marrow transplant. Her family sought funding for further intensive chemotherapy, with a possible second transplant if remission were achieved. Medical opinions differed on whether the treatment was clinically appropriate, but its prospects of success were assessed as low and it was described as experimental.

The Cambridge Health Authority declined funding after considering the clinical advice, the likely suffering, the experimental nature of the treatment and its limited resources. Laws J, in the Queen’s Bench Division Crown Office List, granted certiorari quashing that decision. The Authority appealed.

The Court of Appeal also maintained the anonymity direction made under Children and Young Persons Act 1933, section 39. The central issue was whether the Authority’s refusal was unlawful on public-law grounds.

1. Appeal allowed unanimously. The Master of the Rolls held that the Authority’s refusal to fund the proposed treatment was lawful. The President agreed that the Authority had neither exceeded its powers nor acted unreasonably in the legal sense. Simon Brown LJ also agreed.

2. The court’s function was confined to reviewing legality. It was not entitled to decide for itself whether the treatment was medically justified, likely to succeed, or preferable to palliative care. Those were matters for the clinicians and the Authority entrusted with the decision.

3. The Authority had not failed to consider B’s and her family’s wishes. Its decision-maker was plainly aware that the family urgently sought funding and had considered their request in that context. Public-law fairness did not require an express recital of that obvious consideration.

4. The Authority was entitled to describe the proposed treatment as experimental. The treatment was at the frontier of medical practice and lacked a well-established record of success. It was also entitled to rely on clinical advice that the likely benefit was small and that the treatment could cause substantial suffering.

5. The Master of the Rolls rejected the proposition that a health authority must justify a refusal by producing detailed accounts, identifying its priorities, or demonstrating which other patient would be denied treatment. Health authorities must make difficult judgments about the allocation of limited budgets for the greatest benefit of patients generally. The existence of unspent money did not establish a breach of statutory duty unless the authority could fund every treatment it would otherwise wish to provide.

6. The Authority was also entitled to assess the proposed treatment as a whole. Although the initial chemotherapy stage cost less, a successful first stage would create the need for the much more expensive second stage. It could therefore decide at the outset whether to embark on the entire course. The order of certiorari was set aside, with legal-aid taxation of the Authority’s costs.

• Court of Appeal: Allowed the Cambridge Health Authority’s appeal and set aside the order quashing its funding decision.
• Queen’s Bench Division, Crown Office List (Laws J): Granted certiorari quashing the Authority’s decision not to fund further chemotherapy and a possible second bone-marrow transplant.