Appeal court decision to deny herceptin breast cancer drug deemed unlawful

Herceptin legal battle


Breast cancer patient, Ann Marie Rogers (53), has won her long fight to be provided with the life saving breast cancer drug Herceptin. Three appeal court judges ruled that there was no rational basis for preferring one patient to another, and therefore the decision by Swindon Primary Care Trust (PCT) to refuse to fund Ms Rogers's treatment with Herceptin, in accordance with her Doctors recommendation, must be quashed.

The PCT had argued that they would only approve the drug in exceptional circumstances however the ruling by the appeal court was unequivocal on this matter stating that in the case of personal characteristics, there is no rational basis for preferring one patient to another

Herceptin prescription

The courts judgement, given by Sir Anthony Clarke the Master of the Rolls, pointed out that in this case the only reasonable approach was to focus on the patients clinical needs and fund patients who have been properly prescribed Herceptin by their doctor. The judges made clear that they did not foresee this opening the floodgates to all those suffering from breast cancer as only those satisfying the clinical criteria, as Ms Rogers does, should qualify for treatment.

Ms Rogers lawyer Yogi Amin of National law firm Irwin Mitchell said: This truly landmark judgement makes clear to PCTs that they cannot overlook the clinical needs of the patient. People need to be confident that they will receive the drugs that their doctor prescribes for them, and it is therefore good news for doctors and patients alike.

Herceptin advice

Mr Amin continued Hospital managers will now need to look at reviewing their funding policies. There may be some tough decisions ahead; however this judgement supports the very principles of our National Health Service, that treatment should be free and equal for all, at the point of delivery. Medical advances present new challenges in funding health provision. If PCTs are going to ration healthcare before NICE assess health treatment then a clear, equal and fair procedure now needs to be designed and implemented.

The judgement by the appeal court has been eagerly anticipated by patients, clinicians and health authorities across the country as well as many other people who have been denied important drugs and health treatment their doctors have prescribed for them.

Ms Rogers was extremely relieved and delighted with the news and 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 health care wherever they live. I can now look towards the future and have more confidence that I will win this battle against breast cancer. I am extremely grateful to the judges in the Court of Appeal for this humanitarian judgement.

This decision comes at the end of a historic battle for a patient's right to receive a life saving drug which has been prescribed by a doctor, but refused funding by financial managers. This was the first legal case of its kind, previous cases had seen PCTs backing down and supplying the drug to patients when legal action was threatened.

In the original judicial review hearing, Mr Justice Bean found in favour of Swindon PCT and ruled that their decision not to supply Ann Marie Rogers with Herceptin, despite her clinicians recommendation, was not unlawful. However, the court did grant Ms Rogers leave to appeal and ordered that she continue to receive treatment, pending the appeal, funded by the PCT.

The court of appeal heard the case on 27 and 28 March 2006 and has been considering their verdict since this date.

Yogi Amin, Irwin Mitchell concluded The court has held that the policy adopted by this PCT was irrational and unlawful, we are delighted that a court has ruled that Ms Rogers should now receive the treatment that her doctor has prescribed for her. It is clear now that there needs to be clear ministerial guidance for PCTs on how drugs should be funded to avoid patients being unlawfully denied the treatment their doctor is prescribing, avoiding expensive legal action in the future.

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