Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust

Article 8 does not require a primary care trust to assess non-clinical social circumstances when deciding whether an individual funding request is exceptional. A policy allocating scarce NHS resources by comparative clinical need, without preferences based on non-medical grounds, does not lack respect for private or family life. The trust may reasonably conclude that this approach produces equal treatment between patients with similar medical conditions.

Even if article 8 applied, a trust has a wide discretionary area when balancing individual interests against the fair administration of a finite healthcare budget. It may make that balance when adopting a lawful policy rather than repeat an individual balancing exercise for every request.

The claimant was morbidly obese and suffered serious co-morbidities. Clinicians considered laparoscopic gastric bypass surgery clinically appropriate, but he did not meet the respondent primary care trust’s routine funding threshold.

He made a renewed individual funding request. The trust refused it under a policy which treated requests outside commissioned services as exceptional only where specified clinical criteria were met. The policy excluded social or non-clinical factors, including personal and family circumstances.

HHJ Waksman QC dismissed the judicial-review claim in the Administrative Court: [2011] EWHC 872 (Admin). On appeal, the claimant contended that the exclusion of social factors breached article 8 of the European Convention on Human Rights and that the absence of reasons for overriding his asserted article 8 rights breached article 6.

1. Appeal dismissed. The trust’s policy that individual funding requests should be decided exclusively by clinical factors did not contravene article 8.

2. Article 8 was not engaged merely because the refusal of clinically appropriate treatment severely affected the claimant’s private and family life. The trust was performing its statutory healthcare function by distributing finite medical resources according to comparative clinical need. That was an intentionally non-discriminatory approach. It did not involve preferential treatment on non-medical grounds or show a lack of respect for private or family life.

3. The Strasbourg authorities did not establish a positive article 8 duty to favour one patient over another with the same medical condition because of social factors. The cases concerning state support and medical assistance recognised a particularly wide margin where limited public resources must be allocated. The authorities dealing with discriminatory exclusion from healthcare, protection from sexual violence, and access to an abortion exception were materially different.

4. In any event, the trust had legitimate equality reasons for excluding social factors. It had addressed the ethical and practical problems of prioritisation and was entitled to adopt what it reasonably considered the fairest policy. Article 8 did not require a fresh individual balancing exercise whenever an individual funding request was determined.

5. The article 6 ground also failed. The court’s principal conclusion meant that no prima facie article 8 breach requiring justification arose. Alternatively, judicial review provided a fair determination because the court examined the reasons for the policy and its balancing exercise.

• Court of Appeal (Civil Division). The appeal was dismissed: [2011] EWCA Civ 910.
• Administrative Court, High Court. HHJ Waksman QC dismissed the claim for judicial review: [2011] EWHC 872 (Admin).