Otley, R (on the application of) v Barking & Dagenham NHS Primary Care Trust

In reviewing an NHS funding decision, the court determines legality rather than the clinical or resource-allocation merits. The decision must be rational and take account of material considerations identified by the applicable policy. A panel acts unlawfully if it relies on irrelevant matters, disregards a realistic treatment benefit, or fails fairly to assess exceptional circumstances. Resource allocation remains relevant, but it cannot automatically determine the outcome where the proposed initial expenditure is modest and subject to review. There is no general requirement to disclose internal appraisal material or permit legal representation before a health-funding panel of this kind, although a decision may be quashed if the reasoning is demonstrably wrong or legally flawed.

The claimant, who had metastatic colorectal cancer, sought judicial review of the defendant NHS primary care trust’s refusal to fund Avastin alongside chemotherapy. The Trust’s Difficult Decisions Panel applied a policy requiring consideration of effectiveness, equity, patient choice, cost effectiveness and exceptional circumstances. The claimant argued that the Panel had misunderstood the clinical evidence, failed to consider her prospects of longer-term survival and exceptional circumstances, and had unlawfully relied on the availability of other treatment.

The central issue was whether the Panel’s reasoning and decision were rational and lawful on conventional Wednesbury grounds.

1. The claim succeeded. The Panel’s decision was quashed. The Trust undertook to fund five cycles of Avastin, followed by CT review and a further funding decision. The defendant was ordered to pay 80 per cent of the claimant’s costs, subject to detailed assessment.
2. The court’s role was confined to reviewing legality and rationality. It could not decide whether Avastin was clinically effective, or substitute its own judgment about the allocation of NHS resources. This approach was supported by R v Cambridge Health Authority ex parte B [1995] 1 WLR 898 and R v North West Lancashire Health Authority [2000] 1 WLR 977.
3. The policy itself was rational. However, the Panel’s application of it was flawed. It treated the ratio between Avastin and the other drugs as relevant without evidence that the information could assist the decision; treated ineffective or practically unavailable treatment as an alternative; failed to consider the slim but important possibility that treatment could enable surgery and prolong life; and concluded that the claimant was not exceptional despite features including fitness, youth, adverse reactions to previous treatment and an apparent beneficial response.
4. Resource allocation was a relevant factor but was not decisive in this case. The proposed treatment initially involved only four or five cycles, followed by imaging and review, and did not reasonably require the Trust to put the interests of other patients at risk.
5. Procedural arguments failed. The Panel was not required to disclose its critical appraisal to the claimant’s advisers or permit lawyers to attend. Those procedures may be appropriate for trials or inquiries, but not ordinarily for this type of healthcare funding decision. The decision could nevertheless be corrected if the appraisal led to reasoning that was demonstrably wrong or legally flawed.
6. The decision was distinguished from R (Rogers) v Swindon National Health Service Primary Care Trust [2006] EWCA Civ 392, because the Trust’s policy here was rational even though its application was not.

Not stated in the judgment.