Murphy, R (on the application of) v Salford Primary Care Trust

An NHS body deciding whether exceptionally to fund expensive treatment may take account of financial constraints and the patient’s circumstances. The court reviews the decision-making process rigorously, but does not substitute its own medical or resource-allocation judgment.

Where a policy permits exceptional departure from its usual principles, the decision-maker must consider relevant factors individually and then assess their cumulative effect. It need not adopt an artificially rigid two-stage procedure. A failure to consider the factors in the round is a material public-law error unless the outcome would inevitably have been the same.

The claimant sought judicial review of the defendant primary care trust’s refusal to fund Sunitinib for advanced renal cancer. The trust’s policy permitted exceptional funding where treatment would otherwise be excluded, including where refusal was likely to cause significant psychological or social harm.

The claimant alleged that the Commissioning Panel had misapplied the policy and had considered the relevant circumstances separately without assessing them cumulatively. A Process Review Panel upheld the decision. The central issues were whether the policy required a rigid sequential application of its provisions and whether the circumstances had to be considered in the round.

1. Permission and relief. Permission to apply for judicial review was granted. The Commissioning Panel’s decision of 24 April 2008 was quashed and remitted to that Panel for reconsideration. There was no order as to costs.
2. Applicable public-law principles. An NHS body may consider the financial constraints on its budget together with the patient’s individual circumstances when allocating scarce resources. The court will not ordinarily intervene in such decisions absent irrationality, but the decision-making process is subject to rigorous and anxious scrutiny. The court must not substitute its own view of medical effectiveness or the merits of medical judgment.
3. Construction of the policy. The Commissioning Panel was not required to separate its consideration of paragraphs 4.1 and 3.1 of the Effective Use of Resources policy into a rigid two-stage process. It was lawful in principle to consider the provisions together when deciding whether exceptional funding should be made available.
4. Cumulative assessment. A decision-maker must consider relevant factors individually and then ask the overall question, namely whether their combined effect justifies exceptional departure from the policy. Paragraph 3.1 contemplated funding on a range of grounds, and the whole circumstances therefore had to be taken into account. Several matters could not safely be dismissed as irrelevant or trivial, including the claimant’s inability to participate in a clinical trial, her wider mental-health history and the serious side effects of Interferon.
5. The claimant did not establish that the Panel’s conclusion concerning her role as her husband’s carer was irrational. However, the Panel had failed to consider the circumstances in the round. The court could not be satisfied that the decision would inevitably have been the same had the correct process been followed. The matter was therefore remitted for a fresh decision, without any direction that funding must be granted.