The Queen (on the application of Alexander Thomas Condliff) v North Staffordshire Primary Care Trust
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Waksman |
| Judgment Date | 07 April 2011 |
| Neutral Citation | [2011] EWHC 872 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/123/2011 |
| Date | 07 April 2011 |
[2011] EWHC 872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT sitting in Manchester
His Honour Judge Waksman QC
(sitting as a Judge of the High Court)
CO/123/2011
Richard Clayton QC and Peter Telford (instructed by MPH, Solicitors) for the Claimant
David Lock (instructed by Mills & Reeve LLP, Solicitors) for the Defendant
Hearing dates: 23 and 24 March 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is a claim for judicial review of the decision of the Defendant, North Staffordshire Primary Care Trust ("the PCT") made on 13 October 2010 whereby it refused a renewed individual funding request ("IFR") by the Claimant, Mr Condliff, for laparoscopic gastric by-pass surgery to be funded by the NHS. Mr Condliff is morbidly obese, with various associated co-morbidities and his health is deteriorating. Accordingly, this claim has been dealt with on an expedited basis and by holding a "rolled-up" hearing. The points raised before me are clearly arguable and therefore at the outset of this judgment I grant permission to apply for judicial review.
THE BASIC FACTS
Mr Condliff is 62 and lives in Stoke on Trent, within the catchment area of the PCT. As a result of congenital problems, he developed diabetes and other health disorders. Following problems with treatment (or the lack of it due to a severe needle phobia), the insulin he should have received over a number of years was not delivered as timeously or as effectively as it might have been. The diabetes and other health problems associated with it worsened. Following a course of insulin delivered in an acceptable manner, the Claimant developed a gross appetite and began to gorge himself. His weight increased and his health problems multiplied. He tried all other relevant non surgical interventions including dietary and lifestyle and drug interventions for his gain in weight but was not successful. He is rendered morbidly obese with a BMI (body mass index) in excess of 40 kg/m2. His co-morbidities include renal impairment, hypertension and obstructive sleep apnoea.
Laparoscopic gastric by-pass surgery ("the Surgery") is a form of bariatric surgery. It is an alternative to open surgery which is too dangerous to be performed on Mr Condliff. It is common ground that it is clinically appropriate for Mr Condliff to seek the Surgery which may reduce his weight and alleviate his other serious symptoms.
The relevant primary policy of the PCT ("the Primary Policy") was to provide the Surgery as a routine operation to all those whose BMI was more than 50, for whom the clinicians say it is necessary and who then consent to it. Mr Condliff was not eligible because his BMI was less than 50. He was however able to make an IFR for the Surgery on the grounds of exceptionality which he did on 2 February 2010 through his GP Dr Linney, supported by various specialists who had been treating him. At a meeting of the PCT on 11 March 2010, this was rejected, as notified to him in a letter dated 17 March 2010. Over the next 6 months his condition deteriorated and a request was made to the PCT by Dr Linney in a letter dated 22 September 2010 with enclosures to ask the PCT to reconsider the IFR application. But originally they were sent to the wrong address. Later the letter was forwarded by e-mail to the PCT but without any enclosures. Accordingly, the only material before the PCT was the letter itself. See paragraph 25 of Dr Harvey's witness statement.
In the letter Dr Linney referred to Mr Condliff's various clinical conditions on page 1 and on page 2 said that she had seen a real deterioration in his physical and mental condition in the three months while she had been away on leave and asked for the earlier decision to be reconsidered. She referred to the fact that he now had to use a wheelchair and apart from medical visits was housebound. He could no longer attend Church, one of his previous interests, nor could he play the guitar due to swelling and pain in the hands. His diabetes had caused problems in the left eye and as he had almost reached the limit for laser therapy and as it was likely to deteriorate further, it was in effect a lost cause. His lack of mobility had caused him to become depressed and withdrawn, he suffered from incontinence and his wife had to get up several times in the night to address this. Nor could he shower or dress himself. Dr Linney said that the Surgery would help to control his diabetes and hence the related retinopathy and renal failure. She referred to the fact that if he were in the Stoke PCT area he would have qualified for the Surgery because he had a BMI of over 35 (it was now 43) and had several co-morbidities and that PCT had a policy with a lower threshold for surgery.
The PCT did not consider that these factors mentioned merited reconsideration, as it said in the decision letter under challenge dated 13 October 2010. It said that the public health consultant who reviewed the letter felt that there was no new evidence for the panel to consider and that the additional information contained in Dr Linney's letter did not demonstrate exceptionality.
THE IFR POLICY
The PCT's IFR policy provides at paragraph 4.1.2:
"Where a particular treatment or procedure is not part of an agreed pathway or existing commissioned service, it will not be routinely funded. The patient's request for funding for such a treatment or procedure will be considered under the terms of this Policy".
It then explains that treatment will only be funded for individual patients by the PCT, where it is refused to other patients with similar clinical circumstances, if the patient is able to show that he or she is exceptional. The test for exceptionality is in paragraph 4.2.4:
"The application should demonstrate each and all of the following three criteria:
1. It does not in fact seek to introduce a new treatment for a definable group (however small). Such cases constitute service developments and should be introduced via the PCT's annual prioritisation process.
2. The patient is significantly different from the general population of patients with the condition in question who are currently excluded from funding.
3. The patient is likely to gain significantly more benefit from the intervention than the average patient with the condition"
The IFR policy then provides at paragraph 4.2.5:
"Social factors (for example, but not limited to, age, gender, ethnicity, employment status, parental status, marital status, religious/cultural factors) will not be taken into account in determining whether exceptionality has been established"
("the Social Factors Exclusion")
The justification for this approach is contained in Appendix 1 to the IFR policy ("the Appendix") as follows:
"b) Non-clinical factors:
Patients often seek to support an application for individual funding on the grounds that their personal circumstances are exceptional. This assertion can include details about the extent to which other persons rely on the patient, or the degree to which the patient has contributed, or is continuing to contribute, to society. The PCT understands that everyone's life is different and that such factors may seem to be of vital importance to patients in justifying investment for them in their individual case. However, including such non-clinical, social factors in any decision-making raises at least three significant problems for the PCT:
Across the population of patients who make such applications, the PCT is unable to make an objective assessment of material put before it relating to non-clinical factors. This makes it very difficult for the Panel to be confident of dealing in a fair and even-handed manner in comparable cases. [1]
The essence of an individual funding application is that the PCT is making funding available on a one-off basis to a patient where other patients with similar conditions would not get such funding. If non-clinical factors are included in the decision making process, the PCT does not know whether it is being fair to other patients who are denied such treatment and whose social factors are entirely unknown. [2]
The PCT is committed to a policy of non-discrimination in the provision of medical treatment. If, for example, treatment were provided which had the effect of keeping someone in paid work, this would tend to discriminate in favour of those of working age and against the retired. If a treatment were provided differentially to patients who were carers this would tend to favour treatment for women over men. If treatment were provided in part on the basis that a medical condition had affected a person at a younger age than that at which the condition normally presents, this would constitute direct age discrimination. [3]
Generally, the NHS does not take into account social factors in deciding what treatment to provide. It does not seek to deny treatment to smokers on the grounds that they may have caused or contributed to their own illnesses through smoking, nor does it deny treatment to those injured in dangerous sports in which they were voluntary participants. [4]
In general, the NHS treats the presenting medical condition and does not inquire into the background factors which led to the condition. The policy of the PCT is that it should continue to apply these broad principles in individual applications for funding approval. The PCT will therefore seek to commission treatment based on the presenting clinical condition of the patient and not based on the patient's non-clinical...
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