R (on the application of Rogers) v Swindon NHS Primary Care Trust ...

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genuine application of a policy subject to individually determined exceptions ofthe sort considered acceptable by Lord Scarman in In re Findlay [1985] AC 318.It is similar to the over-rigid application of the near "blanket policy" questionedby Judge J in Reg. v Warwickshire County Council, Ex parte Collymore [1995] ELR217, 224-226, 'which while in theory admitting of exceptions, may not, in reality,result in the proper consideration of each individual case on its merits.' (See p227)."Auld LJ added that in the Collymore case Judge J was referring to the decision notthe policy but in our view the reasoning in that passage points the way in thepresent case.65. We should also emphasise that, as already indicated, the issue in this case isindeed whether the policy that the PCT adopted in relation to Herceptin wasirrational. If it was rational, we cannot see that the refusal to fund the appellant'streatment was irrational. The policy involves asking whether there are exceptionalcircumstances in the case of any particular patient. If that policy is lawful, we cansee no basis for criticising the decision to refuse treatment to the appellant. Sheis one of the eligible group and there is no basis for saying that her circumstancesare exceptional by comparison with others in the group. Both Dr Cole and DrJanson said precisely that. Dr Cole does not therefore complain about theparticular decision but about the policy.66. We therefore turn to consider in more detail the issue of irrationality in thiscase.X. Rationality67. We have already referred to the general policy adopted by the PCT asidentified in the June 2005 paper from which we have quoted above. This appealis not concerned with that policy because, again as set out above, the PCT did notfollow its ordinary policy but a somewhat different policy which had regard to theSecretary of State's guidance without wholly following it. In these circumstancesthe rationality of the general policy is not in issue in this appeal. We simply notein passing that, as we indicated earlier, in our opinion that policy is not irrational.It involves taking account of a number of relevant circumstances, including thefact that the particular drug is off-licence and not approved by NICE, the specialhealthcare problems of the particular patient and financial considerations.68. Although the issue for us is the rationality of the policy that the PCT actuallyadopted in this case, as described in paragraphs 33 to 39 above, much of theargument before the court focused on the general position without regard to theparticular policy which was adopted. Thus Mr Havers submitted as follows. Thestarting point is the fact that Herceptin is neither licensed by EMEA nor approvedby NICE. The system of licensing and approval is central to the way in which theprescription of drugs is administered in the NHS. As Ms Lee puts it in herstatement referred to in paragraph 35 above, it is wrong to introduce what shedescribes as a dangerous precedent of disregarding the contribution made by thelicensing and appraisal process. Moreover, as Ms Lee says, there are concernsabout the research upon which those who prescribe Herceptin rely. Thus a policynot to fund Herceptin save in exceptional circumstances, where a patient canshow that there are exceptional personal or clinical circumstances in her case, isa cautious approach which is entirely rational.69. The judge accepted those submissions in paragraphs 69 and 70 of hisjudgment as follows:
"69. Ms Rogers' case is that her cancer is life-threatening; if she waits for EMEAlicensing and NICE appraisal of Herceptin, it may be too late; she is aware of therisk of side effects, but as an intelligent adult she is willing to take the chance.The Defendant's case, on the other hand, while taking the Claimant's argumentsinto account, is that the system of licensing and appraisal of drug treatments isessential and should not be bypassed; that medical opinion may be moving in theClaimant's favour, but it is not yet unanimous; and that in the absence ofunequivocal guidance from the Secretary of State that PCTs should (or a directionthat they must) fund Herceptin treatment for all the eligible group, they areentitled to be cautious and wait for EMEA's licensing decision and NICE'sappraisal.70. Many people will think that the more generous policy of authorities such asthose listed in paragraph 46 above is a better one than Swindon's. Which is thebetter policy is a matter for political debate, but it is not an issue for a judge. Thequestion for me is whether Swindon's policy is irrational and thus unlawful. Icannot say that it is."Mr Pannick accepts that the policies of other PCTs are largely if not whollyirrelevant but submits that the conclusions in paragraph 69 are flawed.70. He properly accepts that the fact that Herceptin is unlicensed and not yetapproved by NICE is a relevant consideration and, indeed, is likely to be decisivein many cases but he submits that it cannot be decisive in the present case. Headvanced the following detailed arguments, which he says are undisputed orundisputable:i) Absent Herceptin treatment, the appellant has a 25% chance of remaining freeof breast cancer after ten years and a 57% chance of dying from breast cancerwithin that period.ii) According to paragraph 1.3 of the NCRI guidelines the Herceptin trials reportedconsiderable therapeutic benefit with about a 50% reduction in the risk ofrecurrence when Herceptin is given in combination with or followingchemotherapy.iii) The NCRI guidelines identify the eligible group and show that there are manywomen with breast cancer who are not eligible for Herceptin treatment.iv) Dr Cole has prescribed Herceptin for the appellant.v) There is no suggestion (and nor is it the case) that any other drug offers theappellant as good a prospect of survival as Herceptin.vi) There is no evidence from any other specialist that Herceptin is not the bestavailable treatment for a woman in the position of the appellant.vii) The Secretary of State has encouraged trusts to consider providing Herceptinfor women who have been prescribed it by their clinicians, even though it is notlicensed by the EMEA or approved by NICE.viii) The PCT does not refuse funding on cost grounds.71. Mr Havers accepts most of those points, although he emphasises the cautionexpressed in the Lancet editorial, correctly notes that the NCRI guidelines arebased on the trials and do not amount to a recommendation that Herceptinshould be routinely prescribed and submits that the Secretary of State did not
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R (on the application of Rogers) v Swindon NHS Primary Care Trust ...

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