By Ken Thomas, medical negligence
specialist at Harding Evans Solicitors
What happens if you wish to be
prescribed a drug but the NHS is unwilling to provide it? This issue
came to the fore recently when a woman threatened legal action
against the NHS in these circumstances.
Barbara Clarke, a nurse, wished to be prescribed the drug Herceptin.
The drug can extend the life expectancy of cancer victims and Mrs
Clarke had been diagnosed with breast cancer.
Her request was denied by her local
Primary Care Trust in Somerset for two reasons. Firstly, it had not
been licensed for early stage breast cancer. Secondly, the Trust had
not budgeted for it. A year’s course of treatment would cost over
£20,000 per patient. Miss Clarke enquired about private treatment
and was told it would cost £40,000. She was prepared to sell her
house to raise that money if need be. Her circumstances were
particularly tragic insofar as she has a child with a life-limiting
condition.
The patient appealed to her Trust. She indicated that she would use
the Human Rights Act legislation if need be to force the issue and
eventually the NHS backed down and decided she could have the drug.
In fact, Barbara Clarke’s personal crusade has had wider
implications with the Health Secretary subsequently announcing that
all newly diagnosed breast cancer patients will be tested to see if
the drug will be suitable for them.
This is not a totally new issue. Some years back, Multiple Sclerosis
sufferers had a fight on their hands in persuading the NHS to
provide the drug Beta Interferon. The National Institute for
Clinical Excellence had decided the treatment was not cost effective
to be routinely adopted by the NHS.
The Clarke case has come at a time when the NHS is also awaiting
with trepidation the European ruling in the case of Yvonne Watts.
This is the pensioner who last year took the NHS to Court in an
attempt to persuade it to reimburse her the monies she had spent in
paying for her hip operation in France. Mrs Watts had gone abroad
for the operation because she could face her severe arthritic pain
no longer. In the High Court she won a hollow victory when it was
agreed that in principle she should be reimbursed. However she did
not in practice receive any money from the NHS to reimburse her
because it was felt she had not waited quite long enough. This is
why the European Courts are now considering her claim.
The Clarke case was an exceptional one. It certainly does not mean
that patients across the country will now be able to threaten Court
action to get the drugs they want. Her story does however illustrate
that the NHS is not in a position where it can issue blanket
refusals to supply drugs. The principles at stake in these cases are
clearly challenging and potentially costly for the NHS.
