An NHS trust that refused to pay for a woman with breast cancer to be treated with the monoclonal antibody trastuzumab (Herceptin) was accused of decision making that was “arbitrary in the extreme,” in the Court of Appeal this week.
David Pannick QC, counsel for Ann Marie Rogers, made the accusation as he launched an appeal against a High Court ruling last month upholding the stand taken by Swindon Primary Care Trust.
Ms Rogers, a 54 year old mother of three with HER2 breast cancer, has likened the trust’s refusal to fund the £22 000 (€32 000; $38 000) a year treatment to “a death sentence.”
She is appealing against Mr Justice Bean’s ruling that the trust’s policy of funding the treatment only in exceptional cases was not irrational and unlawful or in breach of her right to life under the European Convention on Human Rights.
Meanwhile, the trust is providing her with the drug free of charge pending the outcome of her two day appeal, which ended on Tuesday with judgment reserved until later.
Mr Pannick told Sir Anthony Clarke, Lord Justice Brooke, and Lord Justice Buxton that the decision was unreasonable, the result of a failure to give proper consideration to relevant factors, and a breach of Ms Rogers’ right to life.
“We say that where you have, as you do here, undisputed clinical need, the absence of any alternative treatment offering as good—far less better—prospects for her, her clinician prescribing the drug and no suggestion by the [primary care trust] that cost is a factor to be weighed in the balance, it is arbitrary in the extreme then to say to the patient, ‘You can’t have this drug.'
“Our submission is that one searches in vain for a cogent reason, I emphasise cogent, why the [trust] refuses to provide Herceptin in the circumstances of this case.”
He said that trastuzumab had been licensed for some time for women with advanced breast cancer. It had been the subject of substantial trials in relation to use for early stage breast cancer, to the highest of standards, with the results published in a peer reviewed journal of some distinction.
Philip Havers QC, for the trust, said that its approach was a considered one, taken after receiving the advice of the local cancer network, was in line with the advice of the local strategic health authority, and was shared by many other trusts.
Trastuzumab had not yet been licensed or appraised by the National Institute for Health and Clinical Excellence for early breast cancer treatment. There was a question mark over the drug, raised in an editorial in the Lancet and in one of two papers published in the New England Journal of Medicine. The trust’s policy and its application to trastuzumab allowed for funding in exceptional circumstances and did not therefore amount to a blanket refusal to provide or fund the drug, he added.