Rose, R (on the application of) v Thanet Clinical Commissioning Group

Key legal principles and grounds of decision:

• The court reviewed the lawfulness of a clinical commissioning group’s (CCG) refusal to fund oocyte cryopreservation requested as fertility preservation prior to gonadotoxic treatment and the CCG’s related policies in the light of NICE Clinical Guideline 156.
• The primary procedural decision under challenge was the Triage Group’s refusal to re-open the claimant’s individual funding request; that refusal was lawful because no new clinical information had been submitted and the Triage Group’s remit is confined to assessing clinical exceptionality, not general policy.
• On the wider merits the judge concluded that the CCG could not lawfully justify departing from the relevant NICE guidance merely by saying it disagreed with NICE: where Regulation 5 guidance from NICE has been considered, a CCG must give clear, reasoned explanation if it departs from it. The CCG’s October 2013/April 2014 ART position papers failed to give adequate, rational reasons for departing from NICE CG156 on oocyte cryopreservation.
• The CCG also fell short in the discharge of its section 149 Equality Act 2010 duty by insufficiently analysing the equality implications (notably the gendered impact of funding sperm but not oocyte preservation).
• Despite these criticisms, the court refused the claimant relief in respect of the challenged decision(s) and dismissed the judicial review application save for the narrow possibility of limited declaratory relief to be the subject of short written submissions.

Background and parties: The claimant, a 25 year-old woman with severe Crohn’s disease, sought NHS funding from Thanet Clinical Commissioning Group for oocyte cryopreservation prior to planned gonadotoxic chemotherapy. The CCG’s Triage Group refused to re-open her Individual Funding Request on the basis that no exceptional clinical circumstances had been shown and relied on an existing local policy that did not fund oocyte cryopreservation. The claimant brought urgent judicial review challenging that decision and the CCG’s policy-making in light of NICE Clinical Guideline 156 (2013).

Nature of the application and relief sought: The claimant sought quashing declarations and funding, arguing that the CCG had acted unlawfully by failing to take NICE guidance properly into account, by unreasonably delaying policy change after NICE CG156, by operating an exceptionality policy that was in practice illusory, and by acting in breach of equality duties and Convention rights.

Procedural posture: This was a first-instance urgent judicial review in the Administrative Court. The matter was heard on a rolled-up basis; the judge addressed permission, substance and relief in one hearing.

Issues for decision:

• Whether the Triage Group’s refusal to re-open the IFR was unlawful for failing to consider NICE guidance.
• Whether the CCG’s delay in responding to NICE CG156 was irrational.
• Whether the CCG’s new ART policy (October 2013 / effective 1 April 2014) irrationally failed to follow or to explain its departure from NICE CG156.
• Whether the exceptionality policy could genuinely be satisfied in cases like the claimant’s.
• Whether the policy and decision were directly discriminatory and/or in breach of the public sector equality duty (section 149); and whether Convention rights were engaged.

Court’s reasoning (concise):

• The Triage Group’s remit is to assess clinical exceptionality, not to re-evaluate general commissioning policy; it was entitled to refuse to re-open the case where no new clinical material was provided.
• Regulatory context requires CCGs to have regard to NICE guidance under Regulation 5 and to explain departures when forming general policy (see the NHS Regulations on CCG decision-making and the NHS Constitution). The judge regarded the reasoning in R v North Derbyshire HA, ex parte Fisher as applicable: a decision-maker may not simply disregard national guidance without proper consideration and explanation.
• The October 2013 report and related policy documents did not meaningfully engage with the reasoning and totality of evidence relied on by NICE CG156; the CCG’s advisers relied on points (for example that trial patients were healthier and treatment delivered in experienced centres) which NICE had already considered. The report’s conclusion that the evidence base was “lacking/absent” was irrational in context.
• The CCG’s section 149 public sector equality duty was discharged only superficially; the equality analysis did not engage adequately with the nuanced points raised by NICE and with comparative evidence on sperm v oocyte preservation.
• The exceptionality policy itself was not declared to be a blanket ban; the court accepted that, properly understood, it could allow genuine clinical exceptions, but the claimant’s factual case did not meet the policy’s clinical comparator-based test.

Result: Permission was granted on arguable grounds (other than the pure Article 8 funding claim). Nevertheless the claimant failed to establish public law unlawfulness in relation to the specific Triage Group decision and the request for relief was refused. The judicial review claim was dismissed save for the limited issue of whether limited declaratory relief should be granted in respect of the CCG’s broader policy failings, on which the court invited short further written submissions.

The court dismissed the claimant’s application for judicial review. The Triage Group’s refusal to re-open the individual funding request was lawful (no new clinical material and the Triage Group’s remit is confined to exceptionality). However, the judge concluded that the CCG’s new ART policy failed to give clear, rational reasons for departing from NICE Clinical Guideline 156 regarding oocyte cryopreservation and inadequately discharged the public sector equality duty under section 149; despite these findings the court refused substantive relief in relation to the challenged Triage decision and dismissed the application, while inviting short written submissions on whether limited declaratory relief should be granted in respect of the wider policy failings.