The decision was handed down on 7 April 2011.
Key points from the decision:
- A prohibition on the consideration of non-clinical “social” factors, in determining exceptionality, is not a breach of the patient’s rights to a private and family life under Article 8 of the European Convention on Human Rights (ECHR).
- Decisions on the allocation of medical resources are administrative, evaluative decisions which do not constitute a determination of civil rights entitling an applicant to reasons for excluding social factors from consideration under Article 6 ECHR. In the alternative, if Article 6 is engaged, justification for the social factors exclusion had been provided.
- PCTs must provide sufficiently detailed reasons, in rejecting an IFR application, for the applicant to gain a steer on what might prove to be acceptable evidence for a future successful application.
Facts
Mr Condliff is a 62 –year-old former police officer living in Stoke on Trent, within the catchment area of North Staffordshire Primary Care Trust (the PCT). He developed diabetes as a result of congenital problems. After ultimately finding a satisfactory mode of insulin delivery (which had been previously precluded by a severe needle phobia), he developed a voracious appetite and began to gain weight as a result of overeating. His weight continued to increase until he became morbidly obese, with a body mass index in excess of 40 kg/m2. He had an extensive range of co-morbidities including hypertension, obstructive sleep apnoea and renal impairment. After trying, unsuccessfully, to lose weight through diet and other conservative interventions, Mr Condliff’s consultants advised that laparascopic gastric bypass (a type of bariatric surgery) provided the best chance of improvement to his health.
Under the PCT’s policy, Mr Condliff was not eligible for bariatric surgery as his BMI was less than 50. His GP therefore made an application for exceptional funding under the PCT’s Individual Funding Request (IFR) policy. The application was rejected by the IFR Panel on 11 March 2010, on the basis that the evidence failed to establish that Mr Condliff was exceptional, in the sense of being significantly different from others with the same clinical condition at the same stage of progression (the cohort) and likely to gain significantly more benefit from the surgery. Rather, he was representative of a group of individuals with a BMI between 40 and 50 with a range of co-morbidities for whom the surgery might be appropriate; a group for whom the PCT had decided, in its annual prioritisation round, not to fund surgery.
In September 2010, Mr Condliff’s GP wrote again to the PCT, asking them to reconsider the application for funding in light of the deterioration in his health over the intervening six months. This letter explained that Mr Condliff now attended surgery in a wheelchair, so had further lost his independence, and was no longer able to enjoy his previous interests of attending church or playing the guitar.
The PCT’s Public Health Physician reviewed the information provided in this letter and concluded that it did not constitute fresh evidence to warrant the case going back before an IFR Panel. Rather, it indicated that the patient’s overall clinical condition had deteriorated in a way that was consistent with his co-morbidities and, if he was unable to lose weight by means other than bariatric surgery, sadly foreseeable. This decision was communicated by a letter from the PCT dated 13 October 2010. It is this decision that was the subject of challenge in the proceedings which followed.
Initially, the claimant sought to challenge the lawfulness of the PCT’s policy to fund bariatric surgery only for those with a BMI in excess of 50 ie, inconsistently with NICE Clinical Guideline 43 which recommends surgery as a second (or subsequent) line treatment for adults with a BMI of 40 or more, or between 35 and 40 where there are significant co-morbidities. However, this challenge was dropped following an interim hearing, leaving the claimant to run his case on predominantly human rights arguments.
The four heads of challenge
The claimant alleged that:
- The PCT had breached the Human Rights Act 1998 because the IFR Policy forbade the PCT from taking non-clinical, social factors into account in determining whether evidence of exceptionality had been established, so contravening the claimant’s Article 8 rights under the ECHR.
- Even if the decision was justified under Article 8, the PCT had breached Mr Condliff’s Article 6 rights to a fair and public hearing by failing to give adequate reasons for its decision to exclude social factors from consideration.
- The PCT had failed, irrationally, to apply its IFR policy in determining Mr Condliff’s application.
- The reasons given for refusing Mr Condliff treatment were inadequate and/or irrational.
The first head of challenge – Article 8 and the “social factors exclusion”
Paragraph 4.2.5 of the IFR policy stated that:
“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.”
This was expanded upon in an appendix to the policy.
The claimant sought to allege that this “social factors exclusion” (which was not claimed to be irrational in itself) was in contravention of Article 8, so that the decision made in conformity with it (ie: the decision of 13 October 2010) was itself a breach of Article 8.
The judge noted that:
- Social factors with direct clinical implications would not be ruled out because they would not be “non-clinical factors” within the terms of the policy.
- Some private life factors may have clinical significance (in which case they would not be excluded from consideration under the policy in any event) while some social factors would not even qualify as private life matters. The “social factors exclusion”, in the policy, was therefore not to be characterised as a blanket exclusion of Article 8 factors.
The allegation that the social factors exclusion amounted to an Article 8 breach was based, not on any suggestion that the PCT had interfered with Mr Condliff’s rights but, rather, that circumstances had placed upon the PCT a positive obligation to put in place a regulatory framework of adjudicatory and enforcement machinery to safeguard the claimant’s Article 8 rights, which it had then breached. In other words, it was argued that, when considering whether Mr Condliff was exceptional, the PCT was specifically obliged to have regard to Article 8 and, in particular, to any Article 8 factors which were invoked by him and would not otherwise be considered.
The judge was clear that the primary purpose of Article 8 was to prevent arbitrary State action which restricted private and family life. He said:
“The duty is to ‘respect’ private life, not to deliver an unrestricted private and family life for all. Any positive obligations which arise are likely to be limited”.
Indeed, the UK courts have consistently held that, generally, Article 8 is not engaged in decisions concerning the allocation of healthcare resources. As the Court of Appeal stated in R v North West Lancashire Health Authority, ex parte A, D and G (2000) “[A]rticle 8 imposes no positive obligations to provide treatment”. This sentiment, the judge observed, had been endorsed in a number of subsequent seminal cases.
The jurisprudence of the European Court of Human Rights, in cases like Sentges v The Netherlands (2003) and Pentiacova v Moldova (2005), had clearly indicated that, in general, when the State decides how to allocate its medical resources, Article 8 is not engaged. The judge said:
“A refusal to fund treatment for an applicant is not an interference with his Article 8 rights in breach of Article 8(1), nor is there any positive obligation to provide such treatment.”
Of the factors set out in the appendix to the policy, the judge observed that the PCT had given legitimate consideration to the difficulty of making an objective assessment of non-clinical factors, of assessing the veracity of such claims, of comparing the social factors of the applicant with those of the cohort, of avoiding discrimination, and of departing from the general NHS practice of treating on a “deservedness-blind” basis. On this basis, it was impossible to see how the social factors exclusion, as part of the PCT policy of medical resource allocation, could fail to amount to a fair balance between individuals seeking treatment under the IFR process and the medical requirements of the community as a whole.
The judge’s first principal conclusion was that there was no positive obligation to put in place a regulatory framework to safeguard Mr Condliff’s Article 8 rights. There could therefore be no breach of Article 8, in this regard, by reason of the social factors exclusion.
The judge then moved on to consider the position if, contrary to his initial conclusion, a positive obligation did exist. If this were the case, then the social factors exclusion would have to be justified (ie: be proportionate), for there to be no breach of Article 8. He concluded that the exclusion was clearly rationally connected with the legitimate aim – and, indeed, statutory obligation – of the PCT to break even and required, for the reasons set out in the policy’s appendix. The judge observed that it was difficult to see how a policy designed to confine the consideration of exceptionality to clinical matters could do other than exclude social factors generally.
The second conclusion was that, if a positive obligation such as that contended for by the claimant did exist, then the social factors exclusion was, nonetheless, justified under Article 8(2).
Consequently, if the social factors exclusion, as a policy, did not violate Article 8, the decision of 13 October 2010, applying that policy, could not be found to be in breach of Article 8.
The second head of challenge – Article 6(1) and the failure to give reasons
Mr Condliff contended that the PCT was in breach of Article 6 by failing to give adequate reasons, in its decision of 13 October 2010, as to why it had, in fact, acted compatibly with Article 8.
The judge concluded that the decision of the PCT was an administrative one, allocating or not allocating medical resources on the basis of evaluative judgments about exceptionality where there was no underlying “right” in a patient to a particular treatment but only a target duty on the PCT to provide it. Article 6(1) was therefore not engaged, irrespective of whether or not there was a positive obligation to consider any Article 8 factors invoked.
In the alternative, the judge considered whether adequate reasons had been given for considering that the decision did not breach Article 8 because, though engaged, the breach was justified.
He concluded that the letter of 13 October was not the place to look for such reasons. Rather, the basis for the justification was to be found in the social factors exclusion provided in the appendix to the IFR policy, which was a public document.
If wrong on that account and there was, strictly, a breach of Article 6(1), the judge declined to award any substantive relief because the reasons were available in the policy appendix and in witness evidence, and the claimant’s legal advisers had had no difficulty in formulating their challenge. The reasons had therefore self-evidently been understood.
The third head of challenge – breach by the PCT of its own IFR policy
This was, perhaps, the weakest of the claimant’s allegations: that the PCT failed to put the GP letter of September 2010 through a further review to ascertain whether it disclosed prima facie evidence of exceptionality and failed to find that the letter did indeed constitute prima facie evidence of exceptionality. In light of the evidence, the judge regarded these points as “hopeless”.
The fourth head of challenge – lack of reasons generally
The decision letter, dated 13 October 2010, had said simply that the Public Health Consultant who reviewed the GP’s letter felt that there was no new evidence for a panel to consider and that the additional information did not demonstrate exceptionality.
The judge concluded that the letter failed to provide any real explanation as to why the evidence did not amount to anything new. He considered that more was required of the PCT in order that an applicant wishing to make a further application in the future would have at least some sort of steer as to what might or might not prove acceptable.
However, in light of the fact that it had been open to Mr Condliff to seek clarification about the decision or to invoke the complaints procedure, when he had done neither, the judge saw no point in quashing the decision for lack of reasons and compelling the PCT to reconsider, simply so that it could provide the reasons given in evidence by the PCT’s Public Health Physician.
The judge therefore found that there was a breach of the duty to give reasons but declined to quash the decision on that ground.
He also confirmed that the decision was not irrational merely because of the paucity of reasons provided.
Summary
Although it is not uncommon for Articles 6 and 8 to be raised in priorities cases, the precise mode of deployment of ECHR arguments in this case, to challenge the social factors exclusion in the IFR policy, was almost arcane.
Of undoubtedly more practical interest will be the judge’s observations on the provision of reasons for rejecting applications of this type. It is clearly incumbent upon decision-makers to provide reasons of sufficient detail to enable the applicant to know why the decision was reached. Although the requirements of each individual case will be slightly different, depending on the precise circumstances, a well reasoned decision should indicate, as a minimum, what criteria were utilised in assessing the evidence, what factors were taken into account and which were rejected, how those elements were weighed in the balance, and which considerations were ultimately felt to preponderate in formulating the conclusion. A full briefing note on this duty will be available shortly.
“While the heart may have its reasons, which reason knows nothing of”1, this case confirms that the decision-maker most certainly should not.
