R v Cambridge Health Authority, ex parte B
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,THE PRESIDENT,LORD JUSTICE SIMON BROWN |
| Judgment Date | 10 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0310-6 |
| Date | 10 March 1995 |
| Court | Court of Appeal (Civil Division) |
[1995] EWCA Civ J0310-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Pro Forma
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Mr Justice Laws
Before the Master of the Rolls (Sir Thomas Bingham) the President (The Rt Hon Stephen Brown) Lord Justice Simon Brown
MR N PITT (Instructed by Mills & Reeve, Cambridge, CB2 1PH) appeared on behalf of the Appellant.
MR B MCINTYRE (Instructed by Sharpe Pritchard, agents for Kerseys, Ipswich IPI 3HD) appeared on behalf of the Respondent.
THE MASTER OF THE ROLLSThis is an application for leave to appeal (and if granted an appeal) against a decision of Laws J. The case has been listed under the title "Ex parte B" and the court has made a direction under section 39 of the Children and Young Persons Act 1933 that nothing be published which leads to the identification of the minor involved in the case. The reasons for that order will be quite obvious as I summarise the facts. I would supplement the formal order of the court by a special plea to those involved in reporting this matter that, so far as possible, the case be reported in such a way that it will not only prevent identification of the child but prevent even the child herself realising that she is the subject of the report. The reason for saying that is that the child is desperately ill to an extent that she herself would not appreciate. Nothing could be more tragic than that she should, by reading a newspaper or watching the television, learn even indirectly of her own condition.
The order which is the subject of appeal is an order of certiorari quashing a decision of the Cambridge Health Authority not to fund any further treatment of the child involved in this case by way of chemotherapy and a second bone marrow transplant.
B is a child now aged 10 1/2. In September 1990 it was first diagnosed that she was suffering from what is technically known as non-Hodgkins lymphoma ("NHL") with common acute lymphoblastic leukaemia ("ALL"). This was treated with chemotherapy over a period of months. In August 1992 that course of chemotherapy treatment was completed, for the time being successfully.
Unhappily, the successful treatment did not endure. In December 1993 the child developed acute myeloid leukaemia ("AML") and was treated for the second time with a course of chemotherapy. On this occasion she underwent a course of total body irradiation, a fact of some importance since it appears to be accepted by medical opinion that that is treatment which no-one can undergo more than once.
In March 1994 B underwent a bone marrow transplant. Again, for a substantial period of months there was every reason for her family to hope and believe that the transplant had been successful. Unhappily that turned out not to be so. In January this year she suffered a further relapse of acute myeloid leukaemia. It is that relapse that has given rise to the present proceedings.
At all times B's family, and in particular her father, have strained every nerve to procure for her the best possible treatment. They have always had, as one would expect, her best interests at the very forefront of their minds. The father has deposed that when this further relapse took place he consulted doctors at Addenbrooke's Hospital in Cambridge, including Dr Broadbent, the doctor who had treated B over the years since 1990. At that stage Dr Broadbent's medical judgment was that the child had a very short period of some six to eight weeks to live and that no further treatment could usefully be administered.
Other doctors who had had the care of B at earlier stages (in particular two doctors at the Royal Marsden Hospital in London, one of whom had performed the bone marrow transplant in March 1994) were consulted, who shared the opinion of Dr Broadbent; the respondent Authority was invited to allocate funds for the treatment of B. The treatment involved was potentially a further course of chemotherapy which, in this case, would be a third course. If that was successful, and only if successful, that would be followed by a second bone transplant operation.
B's father was unwilling, and understandably reluctant to accept the views expressed by Dr Broadbent and others. He approached doctors in the United States. Certain doctors there differed from the view which had been expressed by the English doctors and thought that there was a substantial chance of further treatment being successful. Unhappily, however, medical treatment in the United States does not come free and does not come cheap. The cost of treatment by these experts in the United States was, at least to English eyes, prohibitive. B's father accordingly sought help from additional doctors in this country. In particular he approached a notable expert in this field, Professor Goldman of the Hammersmith Hospital, a Professor at the Royal Postgraduate Medical School.
We have two letters of 14 and 17 February written by Professor Goldman to Dr Pinkerton of the Royal Marsden. In his letter of 14 February, Professor Goldman wrote, having summarised briefly the further relapse which had overtaken B:
"I had a long discussion with the father about possible options for further therapy. In essence I agreed with the alternatives that you set out. The compromise that I thought might be reasonable would be to offer the patient further chemotherapy with the hope of achieving a complete remission. A reasonable combination might be MAE [and I omit the chemical names for which that is an abbreviation] because this should not involve excessive additional cardiotoxicity. If complete remission could be achieved, then one might contemplate a second transplant, either with the original sibling donor or conceivably with a matched unrelated donor. I rank the chance of success with this approach as less than 20 per cent."
In his letter of 17 February, Professor Goldman wrote, having had the benefit of a discussion with the consultant paediatrician at the Royal Marsden, that:
"I stand by my view that it would be reasonable to give [B] further chemotherapy with cytotoxic drugs in the hope of achieving complete remission. I realise of course that this may not succeed but I regard it as the best palliative approach to a patient with acute myeloid leukaemia in relapse after bone marrow transplantation, whatever the age of the patient.
If the patient were fortunate enough to achieve complete remission, one could contemplate a second transplant procedure. Obviously this is a high risk strategy and one would need to think very carefully about approaches designed to prevent relapse on a second occasion. This however would not be a totally impossible task. This second transplant could in certain circumstances be carried out at the Hammersmith Hospital in London.
If a decision to give further chemotherapy now were accepted, the issue arises as to where this might take place. I understand that neither you [that is Dr Mellor] nor Dr Broadbent in Cambridge is keen to undertake further treatment of this nature. We would do so at the Hammersmith but just at present we have no bed availability and it seems unlikely that any bed would be available within the next 2 —3 weeks. In these circumstances, I have no option but to suggest to [the father] that he seeks treatment in the private sector. I know for example that Dr Peter Gravett would treat [B] with extreme efficiency and with some luck, a second remission could be achieved."
The officer of the respondent Authority with responsibility for contracting for the purchase of medical and surgical services outside his Health Authority is a highly qualified physician named Dr Zimmern. On 21 February he wrote to B's father recording that he had spent much of the day in detailed discussions with colleagues about B's care, including discussions with Professor Goldman. He said he understood totally the father's concerns and the sense of distress which he must feel. He added:
"Should there be any misunderstanding I should state quite clearly that any decision taken by the [Authority] will be made taking all clinical and other relevant matters into consideration and not on financial grounds.
The [Authority] has funded, and continues to fund, bone marrow transplantations. The [Authority] is also supportive of second, and in difficult cases, third opinions and is grateful to have had the benefit of Professor Goldman's opinion from the Hammersmith following her out-patient consultation, which we understand was arranged by yourself. Dr Broadbent confirms that she subsequently sent a fax to Professor Goldman, at your behest, outlining [B's] clinical condition. I understand from Professor Goldman that his opinion was subsequently sent to Dr Pinkerton and Dr Mellor at the Marsden and to Dr Broadbent at Addenbrooke's. I have had the benefit of seeing that correspondence and of noting Professor Goldman's views. He has subsequently confirmed to me that the line of treatment that he indicated might be a possibility for [B] was at variance with majority opinion and would be properly categorised as experimental rather than standard therapy."
The next paragraph is a reference to the policy of the Marsden not to perform second bone marrow transplants.
Dr Zimmern continued:
"At present no formal request for funding has yet been made to the [Authority] from any hospital, but I should like to emphasise that any decision on this issue will be taken in the light of all the clinical advice available to it in the context of DOH guidance on the funding of...
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