R (on the application of Ross) v West Sussex Primary Care Trust  EWHC B15 (Admin) (10 September 2008)
This case deals with the difficult issue of determining funding priorities in the provision of health care. In this matter, the England and Wales High Court held that the decision of a health service not to fund a relatively new cancer drug was unreasonable. The Court held that where a decision of a public authority involves a substantial interference with human rights, substantial justification is required before a court will be satisfied that the decision is reasonable.
Colin Ross had a multiple myeloma that required treatment with a relatively new cancer drug, Lenalidomide. It was accepted that without this treatment, Mr Ross had a limited life expectancy. However, Lenalidomide was not a treatment that was funded by the West Sussex Primary Care Trust.
Mr Ross applied to the Trust for funding of his treatment with Lenalidomide under the Trust’s Individual Cases Policy (‘ICP’), which allowed for non-funded treatment to be funded in exceptional circumstances. Under the ICP, three factors were to be considered when determining such applications: the exceptionality of the patient’s situation; the clinical efficacy of the treatment; and the cost effectiveness of the treatment.
The cost of this treatment per ‘Quality Adjusted Life Year’ was calculated to be ₤28,980 (although the Court held that this figure was an overestimate).
The ICP provided guidance on the meaning of ‘exceptionality’. It indicated that a patient is not exceptional if they are representative of a group of patients, as opposed to having an ‘unusual or unique clinical factor’. The Trust considered Mr Ross to fall into this category of patients and refused to fund his Lenalidomide treatment.
Mr Ross sought judicial review of the Trust’s decision to refuse funding of his Lenalidomide treatment.
Judge Grenfell indicated that ‘each Trust is entitled, provided it does so rationally, logically and lawfully, to set its own policy for making such difficult decisions’ about exceptional funding of medical treatment. His Honour recognised that the allocation of resources ‘will involve difficult and agonizing judgments as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients.’
Judge Grenfell applied the following test to determine whether the refusal of the Trust was lawful.
The Trust has acted irrationally if it reached a conclusion which no reasonable authority could have made; the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable; the Courts must subject their decision to anxious scrutiny because the Claimant’s life is at stake.
His Honour held that the ICP was unlawful because patients were automatically disqualified under the ICP if they could be likened to another patient, so the requirement was one of uniqueness rather than exceptionality. In a case such as Mr Ross’s, Judge Grenfell considered it is impossible to show uniqueness because there can always be another comparable patient. Judge Grenfell therefore held that ‘the decision to refuse funding on the ground of exceptionality was logically flawed and on the evidence before the panels ought to have been upheld on an ordinary reading of the term “exceptional”’.
His Honour accepted that clinical efficacy and cost effectiveness are considerations that should be taken into account. However, if a patient can demonstrate that their case is exceptional, then the Trust should take a less restrictive approach to the issue of cost effectiveness, particularly if the treatment sought would extend the patient’s life. His Honour also considered that the Trust miscalculated the cost effectiveness of the treatment.
His Honour considered the funding requirements of exceptionality, cost effectiveness and clinical efficacy to be met in Mr Ross’s case. His Honour quashed the decision on the basis that ‘the decision of the Trust was one which no reasonable authority could have made’.
Relevance to the Victorian Charter
The right to life is protected by s 9 of the Charter. This provision is modelled on art 6(1) of the ICCPR and imposes a positive obligation on the State to adopt measures to ensure that the right to life is protected, respected and fulfilled. The right to life has generally been interpreted broadly by international courts and tribunals, given the supremacy of this right and its relationship with all other human rights and fundamental freedoms.
It may be argued that the right to life subsumes the right to access life-saving medical treatment. However, there will be instances where the refusal to provide exorbitantly expensive medical treatment will be a justified limitation on the right to life. For example, in a decision regarding the provision of kidney dialysis treatment, the South African Constitutional Court has confirmed that the right to life does not always bestow the right to ‘evade death’: Thiagraj Soobramoney v Minister of Health (Kwazulu-Natal) (Constitutional Court of South Africa, 1997); see also Minister of Health and Others v Treatment Action Campaign and Others (1) (Constitutional Court of South Africa, 2002).
Nonetheless, R (on the application of Ross) v West Sussex Primary Care Trust supports the position that any decision of a public authority that interferes with the right to life, or which significantly interferes with any other right, must be carefully considered and clearly justified – even if the treatment would cost tens of millions of dollars.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2008/B15.html.
Melanie Schleiger is on secondment to the Human Rights Law Resource Centre from Lander & Rogers