A mother of three fighting for the NHS to supply a costly cancer drug that could save her life lost her case in the High Court yesterday.
The judge ruled that Swindon Primary Care Trust (PCT) had acted legally in deciding that Ann Marie Rogers, 54, was not an exceptional case. But Mr Justice Bean gave Ms Rogers, from Swindon, permission to appeal and ruled that the health authority should continue to fund the drug, Herceptin, until the end of March. The drug costs £21,800 for a year of treatment.
Ms Rogers had earlier described her "constant fear" of living with the aggressive form of early breast cancer. She described the PCT's decision "as though I have been given a punishment, like a death sentence". The ruling angered cancer charities. Her solicitor, Yogi Amin, from Irwin Mitchell, said: "Ann Marie is devastated, but determined to fight on.
All parties hope that we can have an appeal hearing before the end of March. We believe that it is not for trusts to make decisions based on social factors. In essence, this is about mangers going over the heads of clinicians." The case has wide implications for patients, health authorities and NHS funding.
Last summer, research showed that Herceptin could cut by half the chances of breast cancer returning in women whose cancer was described as HER2-positive. The drug is already licensed for advanced breast cancer, but not for early-stage disease. An application to the licensing authorities will be made in the next few weeks. After it receives a licence, the National Institute for Health and Clinical Excellence (Nice) will make its decision for NHS patients.
In the meantime, PCTs have set their own rules. Some have agreed to fund the treatment, but others have not. The row has reached the highest levels, with Patricia Hewitt, the Health Secretary, saying that Herceptin should not be denied on grounds of cost alone.
Yesterday, the judge said: "Ms Rogers has not shown that Swindon PCT's refusal to fund her treatment with Herceptin is contrary to a direction or guidance from the Secretary of State for Health. "Many primary care trusts have a policy of funding Herceptin treatment for early-stage breast cancer sufferers who are HER2-positive, but Swindon's is not to provide such funding unless the individual case is exceptional.
"The court's task is not to say which policy is better, but to decide whether Swindon's policy is arbitrary or irrational and thus unlawful."
He added: "Accordingly, despite my sympathy with Ms Rogers's plight, I must dismiss the claim for judicial review."
A spokesman for the Department of Health said: "Our position remains unchanged. "PCTs need to take into consideration a whole range of factors before making a decision whether to fund Herceptin for a woman with early-stage breast cancer.
"Ahead of a decision on licensing, or Nice appraisal, such decisions will continue to be made at a local level on a case-by-case basis."
Christine Fogg, the chief executive of Breast Cancer Care, said: "This shocking ruling is a huge disappointment and incredibly distressing for Ann Marie Rogers and many other breast-cancer patients. "They were hoping the continuing confusion and fear around access to Herceptin would be resolved by this case."
Jeremy Hughes, the chief executive of Breakthrough Breast Cancer, said: "We are extremely disappointed. Clarity is now needed over who is entitled to have access to Herceptin, prior to licensing and Nice approval.
"This drug could save the lives of 1,000 women a year and it is unfair and cruel for women like Ann Marie Rogers to know that it is money and their postcode that stands between them and this potentially life-saving treatment."
Andrew Lansley, shadow health secretary said: "This is the result the Department of Health sought. It means there will be a postcode lottery in the prescribing of Herceptin for early-stage breast cancer.
"It makes it clear that when Patricia Hewitt gave the impression that Herceptin should be made available through the NHS, this was just an illusion."
By Celia Hall, Medical Editor
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