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Flashcards in The NHS and Resource Allocation Deck (14)
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R. v North and East Devon HA Ex p. Coughlan [2000]

was brought by Ms Coughlan, and she was arguing about a decision to move her from her long-term care residency. Ms Coughlan was quadriplegic and completely paralyzed, and she had been moved by her health authority into a unit at Mardon House. It was documented and said to her orally on many occasions that Mardon House would be her home for life. Ms Coughlan was promised, and it was documented that this promise, that Mardon House, would be her home for life. What then happened was North and East Devon Health Authority reviewed their healthcare provision and they decided to close Mardon House. This isn't about a drug; this is about caring for somebody in a particular location. It was about the closure of this particular unit. So it is a funding decision, but slightly different to some of the usual ones. Now, what Ms Coughlan did via this judicial review application was argue that closing Mardon House was in breach of the NHS's duty to provide a comprehensive healthcare service. So the argument was about their duty to provide comprehensive healthcare service.

What the Court of Appeal said on that particular point was that a comprehensive health service may never be truly comprehensive for resource reasons. So effectively, the argument that there was this duty to force the health authority to provide this healthcare was rejected on the grounds that you couldn't really ever provide a comprehensive health service for resource reasons.

But, the second point from the case which actually is the basis on which Ms Coughlan won it, was that the promise made to her – that she could live in Mardon House – effectively created legitimate expectations. What the Court of Appeal decided, and I think it is an exceptional case, that in closing Mardon House the health authority was guilty of an abuse of power in that it had breached her legitimate expectations. So it was an odd case to argue that there was this duty, and that in not providing the home, the health Authority had breached or acted outside of its powers, and on that the court had said “no, this duty to provide comprehensive healthcare is a pipedream”; but because they had given this promise that she could stay in this location, that had raised legitimate expectations, and to decide against that amounted to an abuse of power. So her judicial review application was successful, but the practical reality was that she had already been moved. So the place had already been closed.

So, she'd already been moved, Mardon House had already been closed, and there was no going back. But at least it acknowledged that the funding should have been made available to her.


R v North West Lancashire HA ex pte A [2000]

The first case, and I'm not going to go into the details of either of these cases at all really… The first case was about gender reassignment surgery. R v North West Lancashire HA ex pte A [2000] - the health authority here was very restrictive in terms of who it would fund this surgery for.

They had a policy in place, but what the court on judicial review said was that it didn't really make any provision for exceptional circumstances. So it wasn't flexible enough to take into account the facts of individual cases. So there was a fixed policy – a very narrow category of people were eligible for gender reassignment surgery – and the judicial review application said that it was not flexible enough. It needed to account for exceptional circumstances and it didn't.

But again, the limit here was the health Authority had to change their policy. It didn't mean that the particular people involved could get their surgery as they wanted. So it forces a change of policy, not necessarily gives an individual a remedy.


R (on the application of Ross) v W. Sussex PCT [2008]

here the private care trust did have a policy, but they always applied it in the same way. So here there was a more flexible policy, but in reality it was always applied in the same way. On judicial review the court said that they were not taking into account individual clinical needs. You are applying your own policy far too rigidly. And the judicial review was successful.


R v Cambridge Health Authority ex p B [1995]

concerned JC Brown, little girl who was 10. She had a cute myeloid leukemia. All standard treatments have been tried and there was a new treatment that was available that was going to cost £75,000. Without this treatment there was little else that could be done; she really was at the end of the road. With this treatment her prognosis was uncertain. Doctors were eventually persuaded that this was probably a good thing to try. But the health authority refused to fund this treatment. So it was a funding decision; the health Authority said they would not pay. So despite the fact that doctors eventually were convinced that this was something that they should try, the Health Authority said ‘no’. So, obviously time was of the essence here and a case was brought to judicial review application. It is an interesting case, partly for what was said in the Court of Appeal by Lord Bingham – here's the quote:

‘To treat no matter the cost would be shutting ones eyes to the real world. Difficult decisions are needed to allocate a limited budget the maximum advantage of a maximum number of patients.’

Lord Bingham talked about allocating to the maximum advantage to the maximum number of patients. So that is Lord Bingham in this case.

So Bingham's language there is very utilitarian. With that said, this was an exceptional case and what the court eventually decided was that the health Authority had not given enough notice to the views of the patient and the patient's family. But, given Bingham's views, despite that, the decision was not rational or unreasonable in this case.

So in this particular case, her views and the views of her family had not been taken into account sufficiently. But actually the decision went against her.

Just to add the end of the story a benevolent benefactor came out of the woodwork and paid for the funding. Sadly, she lived three months. She did get her treatment, and it was paid for privately, but not via the NHS.


R (on the application of Ross)

another argument was that the health Authority had failed to take into account relevant medical information.


R (Rogers) v Swindon NHS Primary Care Trust [2006]

here the health Authority had taken into account irrelevant factors. This was about a cancer drug, and effectively everyone who was eligible for this drug was at the same stage of cancer treatment. So they were all in an equal playing field clinically. So what the argument that the court accepted was: in order to choose who to give the drug to, because everyone had the same clinical need, the health Authority had to be looking at personal factors – looking not at clinical factors, but looking at personal attributes of the people involved. That, they felt, was irrelevant. So everyone who is eligible have the same clinical need; they were all in the same stages of cancer to make them suitable for this drug. Decisions were being made as to who to fund and who not; so effectively the health authority was looking beyond clinical need and taking into account irrelevant personal characteristics, and that was unreasonable. So that policy had to change.


R v Ealing DHA ex pte Fox [1993]

Do the courts take into account what doctors say? The answer is if doctors decide not to treat, then yes. Very rarely Will the courts overturn a decision made based on clinical judgment made by doctors. So if doctors ‘say no we don’t think this treatment is in your best interests, and therefore it is not funded’, it is unlikely you will succeed in a judicial review application.


R (Eisai Ltd) v NICE [2008]

So far we have talked about the commissioning groups as the paymasters who sort out the decisions on funding, but the other possibility of judicial review is to challenge decisions of NICE. I'm not going to go through any of these but I'm highlighting these cases so you can track them if you want.

Suffice to say, there are very few examples of this, but there have been company challenges because obviously, if a drug is manufactured by the company does not get approval, then effectively it's market in this country has shrunk. So there is an issue for the company if NICE does not give approval for a drug. That was the argument in the R (Eisai Ltd) v NICE [2008] case, and they did successfully argue that NICE had not taken all relevant information into account. So that was a successful challenge.


R (Fraser) v NICE [2009]

I can only find one challenge brought against NICE by a patient – R (Fraser) v NICE [2009] -- and this was a course of treatment which was not funded, but the judicial review application was unsuccessful. The patient could not show Wednesbury Unreasonableness. The decision was one that a reasonable authority would have taken.


R v Secretary of State ex p. Hincks [1980]

Most of the cases involve judicial review, but very briefly, for completeness, there is another potential cause of action. I say potential because the court seem to have ruled it out. We didn't look at this in your second year but we did tort; we didn't look at breach of statutory duty, but it is a tort. A breach of statutory duty is where there is an obligation in a statute, but you can sue using tort law to claim compensation for the loss that you suffer. This is potentially always there when there are statutory duties, such as the duty National Health Services Act – this duty to promote the comprehensive health service. But the reason we don’t need to worry too much about this is because in the case of R v Secretary of State ex p. Hincks [1980] Lord Denning made it absolutely clear that this duty was not intended to be an absolute duty which could be sued upon in the civil courts.

‘It cannot be that the Secretary of State has to provide all the latest equipment…all the kidney machines which are asked for…all the new developments for heart surgery…the numerous pills that people take nowadays…’

Effectively, the duty to provide a comprehensive health service is there as an ideal. It doesn’t equate into a duty that you can sue for using tort for breach in civil courts.


Clunis v Camden & Islington HA [1998]

‘It cannot be that the Secretary of State has to provide all the latest equipment…all the kidney machines which are asked for…all the new developments for heart surgery…the numerous pills that people take nowadays…’

Effectively, the duty to provide a comprehensive health service is there as an ideal. It doesn’t equate into a duty that you can sue for using tort for breach in civil courts.

The exact same decision was reached in the Clunis v Camden & Islington HA [1998] case after Hincks – for the same duty that is in the mental health legislation. The Mental Health Act includes a similar duty for the provision of mental health services. But again in Clunis the court said that this is not a duty that becomes actionable through civil courts in tort. You can’t argue breach of statutory duty.


R (Watts) v Primary Care Trust [2003]

Human Rights Act
Other points have been argued, though, such as Article 3. R (Watts) v Primary Care Trust [2003] had to wait about a year for a hip operation, and he said that during the waiting time he was in agony and it amounted to inhuman and degrading treatment. His argument was not successful. So the court heard his case and decided that needing to wait was not inhuman and degrading.


R (Condliff) v North Staff PCT [2011]

Human Rights
Condliff was a chap who wanted to have some surgery to have a gastric band fitted. He said that his social circumstances had been ignored when the Health Care Trust refused to fund his gastric band surgery. He argued, therefore, that his right to a private and family life had been overridden by the decision to refuse him surgery. What the court said here was effectively that this was a funding decision, and you could not use Article 8 to fetter the very wide discretion that health authorities had to have when making funding decisions. So yes, arguably, his individual circumstances had not been looked at, but in so doing was the wider funding issues, and that did not offend his right to private and family life.


R v NW Lancashire HA v A, D and G [2000]

Human Rights
here it was all about a transgender surgery. The claim was that in not funding the treatment it amounted to discrimination – Article 14. But the court said again, very much like in Condliff, at the heart of the decision was a lack of resources, which was the reason the treatment had not been funded, and you could not say that there was anything discriminatory about it; it was an overt funding decision.

So there are arguments on Human Rights, but as those cases show they haven’t been successful.