A morbidly obese man has lost his appeal against his local Primary Care Trust’s (PCT’s) refusal to fund his anti-obesity surgery. The Court of Appeal ruled that the PCT had no obligation under Article 8 of the European Convention on Human Rights to consider social or non-clinical factors when deciding whether to grant a request for exceptional funding.
In his discussion of the case, Lord Justice Toulson began by saying that “Human rights law is sometimes in danger of becoming over complicated“. Underlying this point is the fact that it is already complicated enough. This is a good example: how could a court find that this case, which clearly involves the dignity and family life of a man whose life is difficult and miserable, not engage the protection of human rights law? I will try to explain.
As I said in my post on the High Court decision, Mr Condliff 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 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. He could, however, make an Individual Funding Request (IFR). He did so, and it was rejected in March 2010.
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”:
for example… age, gender, ethnicity, employment status, parental status, marital status, religious/cultural factors
The Trust 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.
In April his challenge was rejected by His Honour Judge Wacksman QC the High Court. Mr Condliff appealed to the Court of Appeal.
To the Court of Appeal
First, let us remind ourselves of what Article 8 says:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In summary, public authorities can only interfere with (1) if to do so would be in accordance with the law and necessary in the manner set out in (2). However, certain decisions of public authorities do not even engage (1) so they are not obliged to justify a potential interference. This is such a case, for reasons that will (or may, depending on your perspective) come clear.
Interference
Central to any review of a healthcare resource decision is the Secretary of State for Health’s fundamental duty under section 3 of the National Health Service Act 2006 to provide healthcare services to patients to such extent as he considers necessary to meet all reasonable requirements. The basic question for the court in this case was the extent to which, if at all, human rights protections play a part in such decisions.
Condliff’s barrister, Richard Clayton QC, presented two arguments. First, that the concept of “family life” is broad, covering the physical and psychological integrity of a person, protecting the right to personal development, and the right to establish and develop relations with other human beings and the outside world. So, the PCT’s decision not to fund the surgery recommended by his clinicians responsible has a direct and immediate negative impact on his private and family life. In other words, the effect of the refusal was to interfere with Condliff’s rights to private and family life.
Lord Justice Toulson made short work of this first argument. Courts have historically been very reluctant to intervene in decisions which involve the allocation of NHS resources. As Lord Bingham has said (as quoted in the High Court judgment), “in a perfect world any treatment which a patient… sought would be provided if doctors were willing to give it, no matter how much it costs” but that would mean “shutting one’s eyes to the real world.”
This case was no exception to the general rule. Moreover, it was a good thing that such policies were applied in a non-discriminatory fashion:
The policy of allocating scarce medical resources on a basis of the comparative assessment of clinical needs is intentionally non-discriminatory. The statutory function of the PCT is to use the limited resources provided to it for the purposes of the provision of healthcare… To perform that function by allocating those resources strictly according to the PCT’s assessment of medical need, i.e. an assessment based on clinical factors, is to do no more than to apply the resources for the purpose for which they are provided without giving preferential treatment to one patient over another on non-medical grounds.
Positive duty
Condliff’s second argument was that Article 8 also includes a positive element, which may extend to the provision of medical treatment. This was an even more difficult argument to succeed on, as although the European Court of Human Rights has recognised certain limited positive duties which arise out of Article 8, it has also “proceeded cautiously” in doing so. Notably, it has never ruled that Article 8 can impose such duties. As Lord Justice Toulson observed:
There is no universal yardstick for determining the scope of a state’s positive obligations under article 8. The Strasbourg Court has been particularly wary of attempts to establish a positive obligation under article 8 in the area of the provision of state benefits, because questions about how much money should be allocated by the state on competing areas of public expenditure, and how the sums allocated to each area should be applied, are essentially matters which lie in the political domain.
In other words, decisions which are primarily about how to spend limited public money are generally for politicians, not judges, as they are about “difficult assessments required in the fair administration of a healthcare system with limited resources“. In conclusion, this judge ruled that Article 8 was simply not engaged (that is, “in play”), and even if it were, the policy was legitimate:
Nothing in the authorities therefore leads me to conclude that the policy of the PCT, properly understood, is to be regarded as showing a lack of respect for Mr Condliff’s private and family life, so as to bring article 8 into play. If, however, article 8 is applicable, there were legitimate equality reasons for the PCT to adopt the policy that it did and its decision was well within the area of discretion or margin of appreciation properly open to it.
No help from human rights here
This case is another demonstration of the reluctance which courts have shown when asked to intervene in decisions on how to allocate scarce public resources. Whilst it is clearly the Secretary of State’s duty under the NHS Act to provide certain services, he must do so so that the over £100bn budget is split fairly between the 463 people it treats every minute.
Due to their own limited time and resources, judges will not be able to see the bigger picture of resource allocation, and so as long as a funding policy is justifiable, they are loath to intervene. The Strasbourg court has underlined this principle repeatedly, and considers healthcare funding to fall almost entirely within a state’s margin of appreciation; that is, the courts are not to intervene except in the most serious of cases.
It would be wrong, however, to mistake the court’s reluctance as proof that they will never get involved. Claimants have successfully challenged resource allocation decisions; for example in the Herceptin breast cancer drug case. In that case the Court of Appeal found that a PCT’s refusal to fund a potentially life-saving drug was irrational. But human rights were in the background only; since the case involved life and death the decision was rightly subjected to “anxious scrutiny”. The court found for the claimants on traditional public law grounds only.
On the current state of the law, it would probably take a European or Supreme Court decision to bring human rights into medical resource allocation decisions. Clearly, such decisions involve issues – such as the right to family life, dignity and self-respect – which are often front and centre in human rights cases. But, for now, unless a decision is clearly irrational, the courts will remain unwilling to bring human rights law into such cases.
Sign up to free human rights updates by email, Facebook, Twitter or RSS