Longstaff, R (on the application of) v Newcastle NHS Primary Care Trust

A public authority deciding whether to fund specialist medical treatment may consider clinical effectiveness, finite resources and the individual circumstances of the patient. Guidance identifying priority categories does not necessarily create an exhaustive exclusion. There is no general duty to obtain further information about a patient’s reasons for refusing an available treatment, although fairness or a statutory scheme may require further inquiry in an appropriate case. An adult of full capacity may refuse treatment, including a particular form of treatment, but must accept the resulting risks. For disability discrimination purposes, a reason relating to the cause of a disability is not necessarily a reason relating to the disability itself. Age and previous treatment were not reasons relating to the claimant’s disability.

The claimant, who had haemophilia and had refused plasma-derived Factor VIII, sought judicial review of decisions by the defendant Primary Care Trust refusing, save in life-threatening circumstances, to fund recombinant Factor VIII. The Trust relied on the availability of clinically effective plasma-derived treatment, the claimant’s failure to fall within the then applicable funding criteria, and his choice to refuse plasma-derived treatment.

Permission was granted on challenges alleging misapplication of Department of Health guidance, failure to take proper account of the claimant’s reasons for refusal, and breach of the Disability Discrimination Act 1995. The central issues were whether the Trust had acted unfairly or unlawfully in making its decision and whether the guidance discriminated against the claimant.

1. Clinical effectiveness and discretion. The Trust was entitled to adopt the Department of Health’s view that plasma-derived Factor VIII was clinically effective and as effective as recombinant treatment. A different, reasonably held medical view did not provide a public-law basis for challenge. The Trust had a broad discretion to balance clinical judgment and finite resources.
2. Guidance. The categories in the 1998 Department of Health circular were not treated by the Trust as exclusive. The decision letters, the internal material and Dr Bradford’s evidence showed that exceptional cases could be considered individually. The challenge alleging misapplication of the circular therefore failed.
3. Fairness and further information. There was no general duty requiring the Trust to seek further information about the claimant’s reasons for refusing plasma-derived treatment. Such an obligation might arise from a statutory scheme or, in an appropriate case, from the duty to act fairly. On the facts, fairness did not require further inquiry or an opportunity to respond to the Trust’s understanding of the claimant’s position. The request had been presented on clinical-need grounds, the claimant’s central conclusion was correctly understood, and he or his doctors could have advanced the additional personal matters on which he later relied.
4. Refusal of treatment. An adult of full age and capacity may refuse treatment, or a particular type of treatment, even where life depends on receiving it. The person exercising that right accepts the risks flowing from the refusal, including deterioration or death and, in this case, the possibility that alternative treatment would not be funded. This was a significant explanatory observation concerning the claimant’s position.
5. Disability discrimination. Applying the statutory test explained in Clark v Novacold [1999] ICR 951, the reasons under the circular were the claimant’s age and previous receipt of plasma-derived products. They did not relate to his disability. A relationship based on the cause of the disability did not satisfy the statutory requirement. The Disability Discrimination Act challenge therefore failed.
6. The application was dismissed.