Human rights, anti-obesity surgery and the NHS purse

13 April 2011 by Adam Wagner

Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (07 April 2011) – Read judgment

What happens when the money for medical treatment runs out? The National Health Service has a limited budget. It also is obliged by law to provide necessary medical services to the public.  Inevitably, some treatments will be considered unaffordable, and this sometimes leads to court challenges.

Two such challenges have arisen recently. One is interesting because it has been rejected (unless it is appealed) by the High Court, and the reasoning behind that rejection highlights how difficult it is to succeed in such claims, especially on human rights grounds. The other, because of the way it, and in particular its human rights aspects, has been reported. Not quite bad enough to merit placing on the legal naughty step, but not far off.

Let’s start with the rejected challenge. Mr Condliff, a morbidly obese man, has diabetes alongside other health problems, as a result of which he developed a gross appetite and began to gorge himself. His body mass index (BMI) reached over 40 kg/m2 and he developed a number of other serious conditions as a result. He tried dieting and lifestyle changes but to no avail. One remaining option was a gastric bypass, the only alternative to open surgery which would have been too dangerous.

Mr Condliff’s local Primary Care Trust (PCT) only provides the expensive gastric bypass surgery routinely to people with a BMI over 50. He was therefore not automatically entitled to the surgery. Mr Condliff could, however, make an Individual Funding Request (IFR). He did so, and it was rejected in March 2010. Since then his condition had deteriorated further, and he is now effectively housebound, depressed and incontinent. Despite these factors being brought to the PCT’s attention, it refused his request again in October.

Off to court

Decisions of public authorities can be challenged by way of judicial review, in which a court will rule on whether the decision was lawful: that is, not irrational, perverse, outside of an authority’s powers or contrary to human rights law.

The main grounds of Mr Condliff’s challenge related to the way in which the PCT assessed individual funding requests, and in particular its policy of excluding “social factors”, defined as “for example… age, gender, ethnicity, employment status, parental status, marital status, religious/cultural factors”, when deciding if a case was indeed exceptional. It justified this policy, which is replicated in other PCTs, on a number of grounds; for example that decision-making should be based on clinical factors alone, avoid discrimination, and to make sure that others making requests are treated fairly even if they don’t mention social factors.

Mr Condliff claimed that this policy breached article 8 of the European Convention on Human Rights (the right to private and family life) and article 6 (right to a fair trial), on the basis that no reasons had been given as to how it had been reached. The claimant also claimed that the PCT had failed to follow its own policy properly and its decision was irrational.

Not this time

The court rejected his claim on all grounds. Concentrating on the human rights aspects, on article 8, Mr Condliff argued that the PCT had a positive obligation to put in place a regulatory framework which would allow it to have regard to family and private life factors. The social factors exclusion was an unjustified breach of that obligation.

Not so, said His Honour Judge Waksman QC. The starting point is the numerous cases which have dealt with the provision of medical treatment. The courts have repeatedly found that this involves hard choices. As Lord Bingham said in R v Cambridge Health Authority ex parte B,

I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it costs, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world.

It is almost never the role of the court to second-guess such decisions. Its task is generally limited to seeing that the decision-making is within the law (see the recent case involving a transsexual’s request for breast augmentation at para 56 of the judgment). That being said, the courts have on occasion held that expensive drugs must be provided; the most recent notable example being the breast cancer drug (Herceptin) case.

The courts have also repeatedly held that article 8 is simply not engaged (that is, cannot be invoked) in relation to the provision of medical resources. As the court of appeal has said and the European Court of Human Rights has confirmed, article 8 imposes no positive obligations to provide treatment. Whilst the European Convention does sometimes impose positive obligations on authorities – for example, the obligation under article 2, the right to life, to investigate deaths – the essential object of article 8 is to prevent arbitrary interference by public authorities, not force them to act in particular ways.

To that end, whist human rights are often invoked in relation to the provision of medical treatment (for example, where life is at risk by a decision, human rights oblige a court to subject it to “rigorous scrutiny” – see para 56 of the Herceptin case) , the courts have been very slow to reduce the wide margin of appreciation granted to health authorities to go about the difficult business of allocating resources. As judge Wacksman concluded:

when a PCT makes a policy decision about where to allocate its limited medical resources, assuming it does so on a rational basis, the A8 rights of any particular person who may be denied treatment as a result of a decision which applies that policy need not be considered by reason of some positive duty.

And, even if article 8 were engaged, Judge Wacksman doubted that the social factors exclusion would be a breach of it (para 64).

Judge Wacksman also rejected the argument under article 6. In order for article 6 to be engaged, there must have been a “determination of [Mr Condliff’s] civil rights”. But since article 8 was not in play, this determination never occurred. So no breach.

A second, similar case

Onto the second case, which was reported in the Observer last week. The case relates to a 15-year-old boy (known as NL) who has a rare condition meaning he cannot eat protein. His family claim that he will suffer physical and mental retardation if his local PCT fails to fund a new drug. Incidentally, the by is being represented by the same lawyers as Mr Condliff.

The article appears to have been based on information provided by the boy’s representatives, although the PCT “declined to comment“. NL will apparently “make legal history by becoming the first child to sue his local health authority under the Human Rights Act“. The case is “one of the first to invoke the Human Rights Act against a PCT“. The article also mentions Mr Condliff, whose case “is the first to have been brought under the Human Rights Act against a PCT“.

Although these statements make for a better story, none of them is right. As Judge Wacksman’s review of the case law in Mr Condliff’s case shows, the human rights act is regularly invoked – albeit with very little success – in cases against PCTs in general and medical resources cases in particular. They have also been invoked by children in previous cases: see, for example, T & Ors, R (on the application of) v London Borough of Haringey which was cited in Mr Condliff’s case.

I suspect that this is the result of confusion. If NL is successful in invoking article 8 – highly unlikely given the case law – it would be right that his case would be the first to successfully invoke certain provisions of the human rights act. But NL’s case clearly isn’t the first to invoke the human rights act. If this is a specific claim under the human rights act, it may be more unusual, but it is not the first against a PCT.

The case has generated an interesting discussion piece on the Halsbury’s Law Exchange, which suggests that judicial review is a better mechanism for challenging resources decisions than the human rights act. I agree, but it appears from the article that NL is using judicial review to challenge the decision rather than a specific claim under the human rights act. Although it is difficult to say, it appears that following an earlier human rights claim, NL is now awaiting a similar (to Mr Condliff’s) “exceptional circumstances” decision from the PCT, which if refused will lead to a JR challenge.

Hard choices

In a recent speech, Lord Neuberger, the head of the court of appeal, lamented poor legal  reporting, and referred to a

subtle form of misreporting: the Human Rights Act is brought in to take the blame for a decision to which in might have played a part – and the part the critics suggested it did play, but which in truth it did not.

NL’s case is not quite in that category, but it does make more of the human rights aspects of the case than is necessary. Ultimately, NL’s case is more likely to be fought (and perhaps won – it is a very sad case) on traditional JR grounds, and human rights are likely to play little part.

As to Mr Condliff, an interesting post-judgment development is reports today of the success of anti-obesity surgery in reducing type 2 diabetes and other health problems. The chairman of the National Bariatric Surgery Registry has said that the treatment should be made more widely available in the UK.

So Mr Condliff may yet receive his surgery on the NHS. But, in the meantime, similar challenges to decisions on the allocation of medical resources are unlikely to successfully invoke human rights. That is not to say they won’t succeed on traditional judicial review grounds. But at present the courts remain unwilling to accept that human rights impose positive obligations on the NHS to treat particular conditions.

And whatever the press may say about new claims making “legal history”, this has been the position for a number of years. So, as painful as it may be for individual claimants when the money for treatment runs out, the courts are unlikely to refill the public purse.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read More:

• Transsexual denied NHS breast surgery loses appeal
• Not breach of rights to force doctor to disclose patient records
• Ireland must make access to abortion easier in life threatening situations