Primary care Trusts in the UK

 Primary Care Trusts  in the UK have to make hard choices regarding the way they spend or allocate their finances but should not ignore the interests of those people in need.

Identify and discuss the legal and ethical issues raised by questions of access to medical treatment with particular reference to Rogers  v Swindon Primary Care Trust [2006] EWCA Civ 392

The issue raised in Rogers v Swindon PCT [2006] was the correlation between patients' rights to NHS medical  treatment and the onus of PCTs (Primary Care Trust) to take into account their financial restraints. A patient had been denied Trastuzamab (Herceptin®) for early-stage breast cancer in Rogers v Swindon PCT [2006]  .  PCTs have to make hard choices regarding the way they spend or allocate their finances but should not ignore the interests of those people in need. Rationing of medical resources is lawful because of budget constraints but PCTs must balance this with  medical needs of individuals. One solution is for  PCTs to adopt a logical, ethical and legal framework at the macro-level to guide NHS resource allocation, but to also act on cases at the micro-level, even if the medication and treatment is classed as a lower priority and PCTs must address the question of “exceptional circumstances”.  

Each area of the UK is run by a group of local health authorities including Strategic Health Authorities (SHAs) and Primary Care Trusts (PCTs). PCTs manage first-line healthcare services, such as doctors surgeries, while Strategic Health Authorities (SHAs) provide a link between the the NHS and the Department of Health.  Every  local health authority in the UK  is independent as it has its own assets and controls its own finances. Each PCT must prove however that are allocating their resources in a logical, ethical and legal framework  and in the most efficient, economical and effective way.

Nedwick (2006) states the problem of ‘exceptional circumstances’ in low-priority treatments can be explained in four propositions:

(a) PCTs  because of budget constraints may allocate some treatments will as low priorities and this means they will not normally be funded. This also means that patients may not obtain access to medical treatment their doctors recommend.1 

(b) The decisions of these PCTs are subject to judicial review. Therefore ‘Rational priorities’ policies should be implemented following a logical, ethical and legal framework which treats people equally, consistently and fairly.  PCTs should appoint standing Priorities Committees to implement the process.2 PCTs cannot use ‘total bans’ as a means of constraining expenditure as this will ignore the possibility of patients having  ‘exceptional circumstances’.3

(c) There is a statutory duty on PCTs not to exceed their annual monetary allocations. They must PCTs therefore have to make difficult choices as to how to allocate  budgets.4

(d) PCTs, when they arise, must act on ‘exceptional circumstances.’ Policies that put  treatments on low priority lists are ameliorated by th eknowledge that particular individuals could have exceptional circumstances. Exceptional circumstances committees should review such cases.

 Herceptin is intended for the treatment of breast cancer. It is used for treatment of stage two disease, but there is substantial evidence that shows  it is also works with respect to stage one of the disease in patients who over-express their HER2 protein (Schwehr, 2008). When the above case of Rogers was decided, Herceptin did not have approval from the Department of Health and neither were there  recommendation from the National Institute for Health and Clinical Excellence (NICE).5 There was some evidence that pointed to the drug  causing  congestive heart failure in a small number of patients and so there was some uncertainty about the effectiveness of the drug.6 Swindon PCT decided not to fund Herceptin except in ‘exceptional circumstances’ and Swindon PCT decided that Mrs Rogers’ circumstances were not exceptional and she therefore took the matter to judicial review. Nedwick (2006) states that the term ‘exceptional circumstances’ even today remains obscure.  

Nedwick (2006) states that the principles of natural justice mean that: (a) the patient must know of all the reasons for any decision not to support any particular treatment; (b) the person must be given the chance  to explain why they think  the decision is incorrect ; and (c) the matter should be examined  by an independent exceptional cases review committee. Procedural fairness was considered in R (F) v Oxfordshire Mental Healthcare NHS Trust.7 The court held that decisions of this nature should not be ‘judicialized’ but  that the health authority had to be seen to act fairly.  The court held that (F) was entitled to argue in writing why the treatment she requested  should be given to her, but this did not entitle  that her to appear in person or see the material that went before the committee. The court held the claimant was entitled to know the basis on which the committee reached its decision was and the Appeal Court held that: ‘A meeting of the forum is essentially a discussion between medical experts. It is not to be equated with a contested hearing… They are agonisingly difficult decisions, and they will not be made any easier or better if they are encumbered with legalistic procedures.’8 The court held that they it  will not insist on standards of procedure appropriate to the courts but that exceptional review committees must maintain good records so as to clearly demonstrate that decisions were based on an application of fairness, logic, ethical and legal framework and that there was consistency between patients.

A duty on PCTs which they must bear in mind is that if the factors relevant to their decision were irrational the decision may be overturned. Public authority decisions must give relevant weight to   those factors appropriate weight and ignore those not relevant. Nedwick (2006) discusses how difficulties arose in Rogers v Swindon PCT with respect to the drug. Swindon PCT did not fund the drug as a matter of general policy on the basis that there were some problems concerns about  effectiveness and safety, and the drug  was not as yet licensed. Swindon PCT also stated that  people apply for special consideration on the basis of their exceptional circumstances. Mrs Rogers’ consultant supported her application but also said that he though that she was not exceptional, because. Mrs Rogers’ consultant stated that her clinical attributes were very much the same as a number of his other patients all of whom could benefit from the drug. Stating that cost was irrelevant to their decision, the PCT decided that her case was not  exceptional which  led her to seek judicial review.  The Court of Appeal held  that PCTs were allowed to make hard choices in refusing to fund Herceptin, except in exceptional circumstances. The Appeal Court ruled the Rogers case was different as the medical treatment had the support of the Department of Health and the consultant.

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