A 53 year old woman with early stage breast cancer this week became the first patient to go to court in Britain to try to force the NHS to pay for her treatment with the humanised monoclonal antibody trastuzumab (Herceptin).
Figure 1.
Ann Marie Rogers is claiming violation of her human rights
Credit: SWNS
Ann Marie Rogers, of Swindon, Wiltshire, claims that Swindon Primary Care Trust is breaching her human rights in refusing to fund the treatment, which would cost £21 800 ($38 100; €31 800) a year.
The drug is so far licensed by the regulatory authorities and assessed as cost effective by the National Institute for Health and Clinical Excellence (NICE) only for advanced breast cancer. If Ms Rogers's case succeeds, primary care trusts could be forced to fund treatment for hundreds of women in the early stages of the disease.
The health secretary, Patricia Hewitt, has told primary care trusts in England and Wales not to refuse treatment on cost grounds alone and has asked NICE to fast track treatment guidelines. Some trusts have backed down and paid for the drug after threats of legal action.
At the High Court in London Ms Rogers's counsel, Ian Wise, told Mr Justice Bean that Swindon Primary Care Trust operated an “arbitrary, irrational, and unlawful” policy that went against Ms Hewitt's direction and was in breach of Ms Rogers's right to life under the European Convention on Human Rights. He said the health secretary had made it clear that trastuzumab could be refused only if there were “clinical concerns” relating to side effects.
The trust says it concluded that there were no “exceptional clinical or personal circumstances” entitling Ms Rogers to have the treatment on the NHS. She borrowed £5000 to fund the treatment privately but ran out of money after two courses. Last December a High Court judge ordered the trust to pay for the drug, pending the outcome of this week's hearing.
Philip Havers QC, for the trust, told the court that the decision taken in Ms Rogers's case was “wholly in line with the guidance issued by the secretary of state.”
The drug's manufacturer, Roche, is applying for a licence for early stage cancer, and a decision is expected in June or July. As the BMJ went to press the judge was expected to reserve his decision until a later date. (See Reviews, p 368.)