Irwin Mitchell acted for a breast cancer sufferer in a groundbreaking appeal against a refusal by an NHS trust to fund her treatment with the drug Herceptin.
Ann Marie Rogers was 54 years old and had three adult children and two grandchildren. She was diagnosed with breast cancer in 2004 and underwent chemotherapy and radiotherapy in 2005. Mrs Rogers’ son discovered that a drug called Herceptin could be used to treat his mother’s cancer.
Mrs Rogers was prescribed Herceptin by her doctors but her local NHS trust decided she was not entitled to funding for the treatment. Mrs Rogers’ consultant applied to the local NHS trust for funding for Herceptin treatment, but this application was rejected. Mrs Rogers decided to fund the treatment herself for as long as she could, and her consultant agreed to treat her with Herceptin on a private basis in October 2005.
Understandably, Mrs Rogers was unable to afford to continue to pay for the course of Herceptin treatment. Yogi Amin, partner and national head of the Public Law team, was instructed by Mrs Rogers to apply for a judicial review of the decision by the NHS trust to refuse to fund Herceptin treatment. The application for judicial review was issued in December 2005 and the court ordered the NHS trust to fund and provide Herceptin until the case was decided.
The case was unsuccessful in the High Court, so Mrs Rogers appealed to the Court of Appeal in April 2006. The Court of Appeal found that the policy operated by the NHS trust, and therefore also the decision to refuse to fund Herceptin to Mrs Rogers, was unlawful and should be quashed. This was because the policy operated by the NHS trust provided no rational basis for distinguishing between eligible patients on the basis of clinical circumstances.
The court ordered the NHS trust to formulate a lawful policy and re-take its decision on whether to fund Mrs Rogers’ treatment with Herceptin in accordance with that policy.
After the judgment of the Court of Appeal, Mrs Rogers said: "I couldn't have asked for a better verdict, I did this for all women battling this dreadful disease. I believe everyone prescribed this treatment by their doctor should be given the same healthcare wherever they live." Mrs Rogers added: "I feel like I've taken on the world and beaten it, not just for me but for everyone else."
For expert advice on matters relating to healthcare law, please contact Anne-Marie Irwin of Irwin Mitchell's public law team on 0370 1500 100 or complete our enquiry form.
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