AC v Berkshire West Primary Care Trust

A public healthcare authority may adopt policies prioritising treatments where resources are limited, provided the policy is rational, recognises genuinely exceptional cases and permits individual consideration. Clinical effectiveness and cost effectiveness are distinct matters. A claimant cannot establish irrationality merely by showing that treatment might benefit her. The authority may compare patients with the same condition and treat materially different cases differently. The statutory equality duty requires due regard to relevant equality needs in substance; it does not require a particular outcome or formal equality impact assessment for every policy. Article 8, alone or with Article 14, imposes no positive obligation to provide the treatment. The claim was dismissed.

The claimant, a transsexual woman, sought judicial review of decisions by Berkshire West Primary Care Trust refusing NHS funding for breast augmentation surgery. The Trust classified breast surgery as a non-core or low-priority procedure under its gender dysphoria funding policy. It maintained the refusal after reconsideration and after comparing the claimant’s circumstances with those of another patient whose surgery had been funded.

The Equality and Human Rights Commission intervened on issues concerning discrimination, the statutory equality duty and the adequacy of the evidence review. The central questions were whether the policy and decisions were irrational, discriminatory or incompatible with Convention rights, and whether the Trust had complied with its duty to have due regard to equality needs.

1. Claim dismissed. The claimant failed to establish any ground for judicial review of the refusal to fund breast augmentation surgery.
2. A PCT may establish priorities between treatments using its finite resources. Its decisions may take account of clinical effectiveness, cost effectiveness and the statutory obligation to balance its finances under sections 229(1) and 230(1) of the National Health Service Act 2006. The court must not substitute its own view of the appropriate allocation of healthcare resources.
3. The policy was not irrational merely because breast augmentation could provide psychological benefit. The evidence did not establish a medical consensus or reliable evidence of long-term clinical effectiveness. The Trust was entitled to distinguish clinical effectiveness from the wider question whether a treatment was a cost-effective use of limited resources.
4. A policy may allow exceptions without defining them exhaustively. It must genuinely recognise the possibility of exceptional circumstances and require each application to be considered on its individual merits. The Trust applied that approach. The funded comparator had substantially more severe psychological illness, so treating the two cases differently was rational.
5. The principle that like cases should be treated alike did not require the Trust to treat a transsexual claimant as unlike every natal woman seeking treatment for psychological distress associated with inadequate breasts. The claimant and the hypothetical comparator were materially alike for the relevant funding decision, while the funded patient was materially different.
6. Article 8 of the ECHR imposed no positive obligation to provide the treatment. Article 14, taken with Article 8, added nothing on the facts. The Trust had also complied with section 76A(1) of the Sex Discrimination Act 1975 by giving due regard in substance to the need to eliminate discrimination and promote equality of opportunity. No formal equality impact assessment was required as a precondition to lawful decision-making.
7. The Trust was not legally obliged to undertake patient research of the kind proposed by the intervener. The extent of evidence-gathering required from a local commissioning body could properly differ from that expected of NICE when developing a national policy.

The judgment describes a judicial review claim lodged on 30 September 2008. Bennett J granted permission on 5 November 2008. The substantive hearing was deferred while the Trust reconsidered its policy and the claimant’s case. The reconsideration maintained the policy and refusals, and the claim was restored for hearing before the Administrative Court.