#1741 - Rationing - Medical Law

Rationing

Rationing: The assessment of healthcare needs and whether or not to fulfil them

• Hasman, Hope and Osterdal: So what is a healthcare need?

  • 1. Where a patient is below an accepted state of well-being and there is a treatment which can improve their condition

  • 2. Where treatment will raise a person’s welfare to or above a certain threshold

  • 3. Where treatment will offer a patient a significant increase in well being.

The law on rationing

• Statute

  • NHS Act 2006 s.1:

    • The secretary of state must promote a comprehensive health service

      • to such extent as he considers necessary to meet all reasonable requirements such as can be provided within the resources available

    • Herring:

      • It is therefore clear that it is permissible to take into account financial considerations

        • when deciding whether to offer treatment to particular patients or groups of patients

      • However, the broad phrasing of M’s duty makes it very difficult to enforce

        • And even if they tried under a breach of statutory duty, the court in Re HIV Haemophiliac Litigation held that the previous 1977 NHS Act did not provide the basis for an action.

• EU Law

  • R(Watts) v Bedford PCT and the Sec State for Health [2003]: W suffered constant hip pain and had limited mobility, and was stuck on a one year waiting list for a Hip replacement. She applied to have the operation done in France using EU law, which conferred a right to be treated in another MS at public expense where such treatment was not available within the time normally necessary for getting it in the resident MS.

    • Munby J:

      • Art 49 (freedom to obtain services) does apply to medical and hospital services, but such a claim could only succeed if prior authorisation for treatment from the UK

        • But EU law claim only refers to the normal NHS waiting time, and this has not passed yet

    • CoA

      • Art 49 EC applies to the NHS

        • And “time normally necessary for obtaining treatment” takes into account his current state of health and the probable cause of the disease

          • Not a consideration of normal waiting times – the focus is on clinical judgement and the impact of any delay.

    • ECJ

      • A UK citizen can only go abroad if the NHS authorises the treatment

        • In deciding whether to give authorisation, the NHS has to take into account the clinical needs of the patient

          • This refers to the amount/degree of pain, the nature of their disability

            • and an objective assessment of the patient’s medical condition and the history and probable course of their illness.

        • Whether a delay is undue is decided by reference to those factors just listed

          • Economic factors and budgetary constraints are not relevant features.

• Judicial Review – generally considered under the ground that The decision was unreasonable – making a decision so unreasonable that no reasonable decision maker would make it

  • No absolute duty to provide treatment

    • Couglan

      • Lord Steyn:

        • M must bear in mind the comprehensive service he is under a duty to promote

        • However, so long as he pays regard to that duty, the fact that the service will not be comprehensive

          • doesn’t mean he’s in contravention of it

      • Indeed, a comprehensive service may never, for human, financial or resource reasons, be achievable

        • M must take into account the resources available to him and the demands on those services

  • If the body has taken into account relevant/irrelevant considerations may help a JR be successful

    • R(Ross) v West Sussex PCT: C challenged a decision by WSPCT not to fund a cancer drug Lenaildomide. It had not yet been ratified as cost effective by NICE. 60% of PCTs funded the drug but the rest did not, it being within the power of each PCT to decide, rationally and logically, what to spend on to meet the reasonable needs to the people in its local area. The advantage to C to Lenaildomide was that it did not have the same side effect as a different drug C could not longer take

      • Grenfell J

        • While each body can’t have a specific clinical expert in each funding decision on the panel for each case

          • It does need to seek appropriate guidance from experts,

            • the lack of such expert evidence led here to patently incorrect conclusions, such as that Lenaildomide had no robust effect

  • Where legitimate expectation engendered – see Coughlan

Should Financial Considerations be taken into account in JR proceedings?

• The general rule

  • R v Cambridge HA ex p B [1995]: B was diagnosed to be suffering from leaukemia. It was successfully treated but kept coming bacl After a relapse, B’s doctors thought it was not in her best interests to have a third chemo course and second bone marrow transplant. B’s father found another doctor in who would be prepared to do it, and applied for funding from the C Health Board, with the pair of treatments having a 10-20% chance of success at a cost of 75,000. The board refused.

    • Bingham MR

      • In a perfect world, HAs could ensure they provided all treatments that people wanted, no matter the cost.

        • But it would be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world.

      • It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet.

        • Difficult and agonising judgments have to be made to best allocate a limited budget to the maximum advantage of the maximum number of patients.

          • That is not a judgment which the court can make, and a HA cannot be criticised for advancing this consideration to the courts.

      • The only way a hospital would be in breach of its statutory duty is if it had money to spare but refused to buy treatments which were in the best interests of its patients

        • No HA will ever be in that position.

        • Nor does a HA have to bring its accounts before the courts to prove if they treated B they could not treat C – that is highly unrealistic.

• Where costs are not considered a relevant factor...

  • R(Rogers) v Swindon PCT [2006]: C, who suffered from breast cancer, was prescribed Herceptin, which was not licensed for early stage sufferers like her. She fell within an eligible group of patients for whom the drug was likely to be effective and increase her life expectancy. SPCT’s policy was only to fund drugs not approved by NICE where a patient had a special healthcare problem that presented an exceptional need for treatment having regard to the funds available. In the case of the drug in question SPCT decided to fund off-licence treatment in exceptional circumstances but without regard to cost. C was denied funding because she was not considered to be an exceptional case.

    • Clarke MR:

      • If this case concerned scarce resources, it would be very difficult to say that a policy was arbitrary or irrational

        • if SPCT had adopted the M’s guidance that applications should not be refused solely on the grounds of cost

          • but that, with many competing demands on its budget, it could not disregard its financial restraints.

      • In considering the rationality of the policy, the court must consider whether there are any relevant exceptional circumstances

        • which could justify the PCT refusing treatment to one woman within the eligible group but granting it to another.

        • The difficulty that the PCT encounters in the present case is that while the policy is stated to be one of exceptionality,

          • But no persuasive grounds can be identified clinically for treating one patient who fulfils the clinical requirements for Herceptin treatment

            • differently from others in that cohort

      • SPCT has not put any clinical or medical evidence before the court to suggest any such clinical distinction could be made.

        • In short, once the PCT decided (as it did) that it would fund Herceptin for some patients and that cost was irrelevant,

          • the only reasonable approach was to focus on the patient's clinical needs

            • and fund patients within the eligible group who were properly prescribed Herceptin.

    • Herring: not a case saying that cancer sufferers must get drugs, only that rationing decisions must be made openly to be considered rational.

      • If a PCT cannot afford a drug, it must be open about the cost issue in its decision.

  • R(Otley) v Barking and Dagenham PCT [2007]: C suffered from colorectal cancer. C discovered the existence of the unlicensed drug Avastin, which after paying her doctor privately for several cycles, showed a significant improvement. C’s doctor requested Avastin, (1000-1500 per cycle) to be funded by BDPCT once C ran out of money. The review body considered expert advice which recommended its use in several circumstances. After considering only the short term effects of the drug, and not the slim chance of long term survival, the review board rejected the treatment.

    • Mitting J:

      • It is clear that the courts have a very limited possibility to intervene – PCTs have a very tough job funding and must make decisions based on their finite resources

        • However, the review body failed to take into account that there were no other possible treatments available

        • And it did not recognise the slim but important chance that treatment could prolong C’s life by more than a few months.

      • The general policy is rational as it properly provides that the allocation of resources is an element in every decision of this kind.

        • But the course of treatment proposed here was at least in its initial stages a course which required the allocation of only relatively small resources,

        • Thus the course proposed did not on any reasonable view require this Trust to put at risk the interests of other patients

          • Accordingly, the decision of the...