Rogers, R (on the application of) v Swindon NHS Primary Care Trust & Anor

A public healthcare body may lawfully reserve treatment for undefined exceptional cases only if it genuinely recognises that relevant exceptional circumstances may arise and considers individual cases on their merits. A policy is irrational if its stated exceptionality criterion cannot rationally distinguish between patients.

Where a body disregards cost, accepts that a treatment may be funded despite the absence of licensing and NICE approval, and has no evidence of a relevant clinical distinction within the clinically eligible group, it cannot prefer some patients because of non-medical personal circumstances. It must adopt a lawful policy based on patients’ clinical needs.

The claimant had early-stage HER2-positive breast cancer and her clinician prescribed Herceptin. Swindon NHS Primary Care Trust declined funding under a policy which treated cost as irrelevant but funded the drug only in exceptional personal or clinical circumstances pending licensing and NICE approval.

Bean J dismissed her judicial-review claim in the Administrative Court: [2006] EWHC 171 (Admin). She appealed, contending that the policy and the decision made under it were irrational. The central issue was whether the Trust could rationally distinguish, by exceptionality, between patients within the clinically eligible group.

1. Appeal allowed unanimously. The Trust’s Herceptin policy was irrational and unlawful. Its refusal of funding, being an application of that policy, was quashed.

2. A policy withholding treatment save in undefined exceptional circumstances may be lawful. It must, however, genuinely contemplate relevant exceptional circumstances, such as overriding clinical need, and provide for individual consideration. If no such circumstances can be envisaged, the policy is in substance an irrational blanket refusal dressed as an exceptionality policy.

3. The court accepted that the lack of licensing and NICE approval was relevant, and that a financially constrained trust could balance cost against individual circumstances. The Secretary of State’s guidance did not require routine funding, but it prevented a trust from ruling out treatment in principle and required consideration of individual circumstances.

4. This Trust went further: it excluded financial considerations and accepted that Herceptin could be funded for some clinically eligible patients. Once it had done so, personal or social characteristics could not justify funding one patient but not another with equal clinical need. The Trust also produced no evidence of a clinical feature that could rationally distinguish patients within the eligible group. A possible difference in prognosis had been rejected, and there was no evidence that another drug was an alternative to Herceptin.

5. The court therefore did not decide the Convention claims. It considered that it could not and should not order funding itself. The Trust had to reconsider and formulate a lawful policy for future decisions, including the claimant’s case.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal and quashed the Primary Care Trust’s refusal: [2006] EWCA Civ 392 .
• Administrative Court: Bean J dismissed the claimant’s judicial-review application: [2006] EWHC 171 (Admin) .