R (on the application of) Condliff v North Staffordshire Primary Care Trust 27.07.11

The Claimant lost his appeal to challenge the way the PCT set its individual funding request (IFR) policy. Article 8 of the European Convention on Human Rights (ECHR) has not been breached by a policy by which requests for individual funding are to be considered and determined exclusively by reference to clinical factors.  

Background

With a body mass index (BMI) of 43 and a range of co-morbidities, the 62 year old Claimant required laparoscopic gastric bypass. However, he was not eligible for treatment as his BMI was less than 50.

The Claimant’s GP made an application to the Defendant for “exceptional funding”. This was rejected by the Defendant’s IFR panel on the basis that the Claimant was not exceptional within his cohort. The IFR policy stated that social factors will not be taken into account in determining whether “exceptionality” has been established. Example factors include, but are not limited to, age, gender, ethnicity, employment status, parental status, marital status and religious/cultural factors.

Six months later the GP wrote to the Defendant asking it to reconsider the Claimant as he had become effectively housebound, depressed and incontinent. The Defendant responded that a public health consultant review of the GP’s letter found no new evidence for the IFR panel to consider - the additional information did not demonstrate exceptionality.

The Claimant challenged the lawfulness of the Defendant’s decision to refuse the renewed funding request. He brought judicial review proceedings against the Defendant, on the ground that there had been a breach of Article 8 of the ECHR – the right to a private and family life. The court rejected the Claimant’s challenge. However, it found that the Defendant’s reply to the GP’s letter failed to provide an explanation as to why the evidence did not amount to anything new.

The Claimant appealed.

Appeal

The Claimant argued that the exclusion of social non-clinical factors from the Defendant’s evaluation of “exceptionality” breached Article 8. He suggested that the meaning and scope of Article 8 should be interpreted broadly, and as such, the Defendant’s decision not to fund surgery directly had immediately impacted negatively on his family and private life. In the alternative, Article 8 required the Defendant to uphold and support his right to a private and family life. He also alleged that the judge had erred in failing to hold a breach of Article 6 by reasons of a failure by the Defendant to provide reasons for its adverse determination of his Article 8 rights.

With Lord Justice Toulson delivering the lead judgment, the Court of Appeal held the Defendant had been correct “to apply the resources for the purpose for which they are provided without giving preferential treatment to one patient over another on non-medical grounds”. It disagreed that ECHR decisions supported the proposition that an IFR policy should not be determined exclusively by clinical factors. Social (i.e. non-clinical) factors were not equivalent to Article 8 factors.

The Court recognised that the Claimant’s state of health was having an adverse effect on his private and family life. However, it did not consider that the application of the Defendant’s IFR policy involved a lack of respect for the Claimant’s private and family life, so as to bring Article 8 into play. Even if Article 8 were to be applicable, it was legitimate for the Defendant to adopt the policy it did and its decision was well within the discretion properly open to it. In finding there had been a proper determination of the Claimant’s Article 8 rights, the Court held that the Article 6 argument fell away.

The Supreme Court has rejected the Claimant’s application for a hearing.

Comment

This case confirms that Article 8 cannot be properly relied upon as giving rise to a positive duty for healthcare providers to take into account welfare considerations wider than the comparative medical conditions and medical needs of different patients.

It is prudent for PCTs to provide detailed reasons as to how funding decisions are reached, including factors taken into account and those rejected. Nevertheless, healthcare providers should take comfort from the Court of Appeal’s recognition of the importance of the statutory function of PCTs to allocate scarce medical resources on the basis of comparative assessment of clinical needs.