Wallpott (R on the application of) v Welsh Health Specialised Services Committee

Individual patient funding decisions must apply the relevant policy according to its language and purpose. Where a policy requires comparison with patients having the same condition and disease stage, decision-makers must not replace that comparator with a narrower group selected by reference to whether clinicians would recommend the treatment.

Reasons must address the principal factors relied on by the applicant, particularly where the decision is important and review rights are limited. A public body must assess alternatives actually available to the patient and must consider relevant offsetting costs. NICE guidance which permits treatment subject to safeguards cannot be treated as requiring automatic refusal of funding.

The claimant, who had stage 4 appendiceal adenocarcinoma with peritoneal spread, sought NHS funding for cytoreductive surgery with hyperthermic intraperitoneal chemotherapy. Her treating clinicians considered the disease resectable and recommended treatment at a specialist centre.

The Welsh Health Specialised Services Committee refused the individual patient funding request and upheld that decision on review. The claimant challenged the decisions on grounds including misinterpretation of the individual funding policy, inadequate reasons, misconstruction of NICE guidance, mistake of fact concerning alternative treatment, and failure to address cost offsets.

1. Policy interpretation and comparator. The defendants misinterpreted the IPFR policy. The relevant comparison was with the general population of patients with peritoneal carcinomatosis at the same stage, not merely with patients whose clinicians would recommend CRS with HIPEC. The policy did not impose a test of uniqueness. R (Condliff) v North Staffordshire Primary Care NHS Trust did not assist because the court was construing a different policy.
2. Reasons. The decision letters largely repeated the relevant criterion and asserted that it was unmet. They failed to address the claimant’s resectability, the particular characteristics of appendiceal cancer, her age and fitness, and the evidence concerning the limited value of systemic chemotherapy. Given the importance of the decision and the restricted review process, the reasons were inadequate.
3. NICE guidance. NICE IPG 688 was permissive, subject to special arrangements, experienced multidisciplinary selection and treatment in highly specialised centres. It recognised clinical effectiveness for some patients. It could not lawfully be treated as requiring automatic rejection of every funding request.
4. Alternative treatment. The conclusion that EGFR inhibitors were available to the claimant was a mistake of fact. The treatment was not recommended for her and was not available in her clinical circumstances. The mistake was material because the comparison with available alternatives formed part of the assessment of clinical benefit. The principles in E v Secretary of State for the Home Department were satisfied.
5. Cost effectiveness. The panel failed to consider the claimed reduction in chemotherapy costs, or to explain why that evidence was rejected. Automatically treating the procedure as failing the cost-effectiveness criterion by reference to PP90 would unlawfully fetter the individual merits assessment.
6. Post hoc reasons and relief. Evidence from Professor Doull supplied after proceedings began introduced new reasons rather than merely elucidating the contemporaneous reasons. Applying the principles derived from R v Westminster City Council, ex p Ermakov, that evidence was inadmissible to justify the decisions. Permission was granted and the judicial review claim was allowed. The court declined to refuse relief under section 31(2A) of the Senior Courts Act 1981.