On 4 July 2008 judgment was delivered in the case of Murphy v Salford PCT relating to treatment with Sunitinib.
We understand that rumours have been circulating that the judge decided that dependants must be taken into account when considering life extending treatments. This is not an accurate summary and we set out the key points below.
The PCT had a funding policy with the following paragraphs:
"The following principles are offered as guidance and not intended to be binding in every case. Where appropriate treatment, procedures or therapies may be authorised that are not included within these principles or that would appear to be excluded by them. The possibility will be especially relevant in, but will not be confined to, the exceptional circumstances referred to in paragraph 4 below"
"Treatments or procedures that would otherwise appear to be excluded by this policy may nevertheless be authorised for a particular patient where the failure to provide them would be likely to cause significant damage to his/her psychological health or social circumstances."
Several factors were identified as relevant to exceptionality:
• metastatic renal cancer;
• unable to take part in trials of Sunitinib;
• also had breast cancer;
• mental health problems experienced whilst on Interferon;
• complaints raised by son;
• not able to take maximum dose of Interferon; and
• principle carer for her husband who suffered from a number of medical conditions.
The PCT panel concluded that none was an exceptional factor.
When the patient appealed she alleged that the panel had misapplied the policy and had failed to consider all of the factors identified in the round, in addition to looking at them one by one.
The review panel upheld the initial decision. They were of the view that a number of the circumstances would be common to those with the claimant's condition and if none of the individual circumstances which remained were exceptional then the totality of those circumstances did not, in fact, constitute exceptional circumstances.
The judicial review (JR) therefore related to the allegation that the factors were not looked at in the round.
The judge decided that, having looked at factors individually, it is also necessary to look at them in the round.
The PCT argued that the factors (other than the last) were so vestigial that they could not possibly have affected the outcome had the panel gone on to deal with them in the round. The judge did not agree with this – he felt the factors which we have emboldened in the list above should have had weight attached to them in the round.
The judge said that the social question was not sufficient to carry her into the territory where the panel would fund her treatment (and the patient did not suggest at the JR that the panel were irrational in coming to that conclusion). However, he felt an error was made in not looking at the circumstances in the round.
The decision was referred back to the panel but the judge emphasised that the fact he concluded there was a legal error in the decision making process did not lead to the conclusion that the decision would necessarily be different.