Christmas cancelled for Breast Cancer patient forced to go to court to fight for life

Herceptin drug

23.12.2005

Ms Ann Marie Rogers of Haydon Wick, Swindon (53) is taking her fight to get the drug Herceptin to the High Court, London on Wednesday 21 December.

She has launched a legal challenge against her local primary care trust, Swindon NHS Primary Care Trust (PCT), and has applied to the High Court for a judicial review of her case after being denied Herceptin despite her clinician recommending it. 

This will be the first case of a PCT actually being taken to court; all previous legal actions have resulted in the PCT reversing their position before judicial proceedings have taken place. The case will be heard at the High Court, Royal Courts of Justice, Strand, London on 21 December 2005 at 10.30am.

Herceptin lawyers

Ms Rogers is using the law firm Irwin Mitchell who have successfully challenged a number of other PCTs to change their decision on denying Herceptin to other women, including Elaine Barber who won the right to get the drug after the PCT reversed their initial decision to deny her the drug.

The Herceptin drug, according to new evidence* halves the chances of the aggressive HER-2 form of the disease. Despite her clinician recommending she receive the drug treatment, she was denied it on grounds of an alleged lack of evidence of the drug treatment's success and lack of exceptional circumstances.

Herceptin solicitor

Ms Roger's solicitor, Yogi Amin, Irwin Mitchell, commented: "The Herceptin drug is already licensed and widely used for late-stage breast cancer. Since the Elaine Barber case, many PCTs have agreed to fund the Herceptin drug for early stage breast cancer. However, some PCTs are still seeking to go against a clinician's advice to the patient and deny treatment. The PCT are wrongly adopting a policy which decides on who should be entitled to live and who should be left without the life saving treatment. They have not said what criteria."

Ms Rogers has already taken a loan to pay for 3 treatments and her next Herceptin treatment is due on 5 January 2006. The PCT's decision is in direct conflict with the guidance given by Patricia Hewitt the Secretary of State for Health who recently gave a speech on breast cancer awareness in which she said that "PCTs should not refuse to fund Herceptin solely on the grounds of its cost" and has told drugs watchdog, the National Institute of Clinical Excellence (NICE) to fast-track treatment guidelines.

Yet despite this, and the work of campaign group Women Fighting For Herceptin, hundreds of early stage breast cancer patients who have the support of their clinicians are nonetheless being denied this vital drug by their PCTs who fund the drugs, and told that it will have to await broad licensing which is not planned until at least 2007. Whilst cost isn't being given as the sole reason, it is an obvious contributing factor.

Mr Amin concluded: "Time is running out for early-stage breast cancer patients, who need the drug now. They shouldn't have to be concentrating their efforts in fighting against their Primary Care Trusts' decisions, especially when a clinician has assessed the drug as being vital to the patient. I'm in no doubt that cost is a major factor in the refusal of the drug. As such the distribution of Herceptin for all breast cancer sufferers, no matter what stage, needs to be addressed immediately. Swindon NHS PCT has said that Ms Rogers is not an exceptional case. All breast cancer suffers assessed as requiring this treatment by their clinician are fighting against potentially life threatening cancer returning. If these are not exceptional cases I do not know what are."

Ms Rogers said: "I was otherwise a very healthy person and was deeply shocked when I was diagnosed with breast cancer. I have now endured the gruelling chemotherapy and radiotherapy and I am angry with my PCT refusing to fund the health treatment I need. But I will continue to fight for Herceptin as it is vital in preventing the cancer recurring and allow me to get my life back."

If you require further information please contact Yogi Amin on 0370 1500 100.

Have you got a claim? If we can help you or someone you know with a similar case, please visit our Human Rights section.