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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S (a child) v NHS England [2016] EWHC 1395 (Admin) (15 June 2016) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2016/1395.html Cite as: [2016] EWHC 1395 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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S (a child) By her father and litigation friend M |
Claimant |
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- and - |
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NHS England |
Defendant |
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Ms Jenni Richards, QC (instructed by DAC Beachcroft) for the defendant
Hearing dates: 4th May 2016
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Crown Copyright ©
Mr Justice Collins:
"(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement –
(a) in the physical and mental health of the people of England, and
(b) in the prevention, diagnosis and treatment of physical and mental illness.
(2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act."
Section 1H set up the NHS Commissioning Board (usually referred to as NHS England). So far as material, S.1H provides:-
"(2) The Board is subject to the duty under section 1(1) concurrently with the Secretary of State except in relation to that part of the health service that is provided in pursuance of the public health functions of the Secretary of State or local authorities.
(3) For the purpose of discharging that duty, the Board –
(a) has the function of arranging for the provision of services for the purpose of the health service in England in accordance with this Act, and
(b) must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act."
The public health functions of the Secretary of State and of public authorities are specified in various sections of the Act. It is not necessary for the purposes of this judgment to refer to them.
"(a) reduce inequalities between patients with respect of their ability to access health services, and
(b) reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services."
"Specialist neuroscience services for children and young people".
"The IFR panel will use the information provided by the requester to compare the patient to other patients with the same presenting medical condition at the same stage of progression. Specifically, the panel may consider, based upon the evidence provided to it, whether or not the patient has demonstrated exceptional clinical circumstances which lead the panel to believe that the patient would benefit significantly more from the treatment than the other patients not meeting funding criteria. When making the decision, the IFR panel is required to restrict itself to considering only the patient's presenting medical condition and the likely benefits which have been demonstrated by the evidence to be likely to accrue to the patient from the proposed treatment."
There is a requirement to have regard to the Equality Act 2010 and the Human Rights Act 1998 and a prohibition on making "treatments available to individual patients, and not other clinically similar patients, on the basis of non-clinical factors".
"The fact that a patient failed to respond to, or is unable to be provided with, one or more treatments usually provided to a patient with his or her medical condition (either because of another medical condition or because the patient cannot tolerate the side effects of the usual treatment) may be a basis upon which the panel may find that a patient is exceptional".
It is difficult to follow why there should be a difference in principle where the usual treatment simply does not work for a particular patient irrespective of the existence of another medical condition or side effects. But this statement is qualified and the panel is told to be satisfied that the patient's inability to respond to the usual treatment was genuinely an exceptional circumstance. The policy continues:-
"If the usual treatment is only effective for a proportion of patients (even if a high proportion), this leaves a proportion of patients for which the usual treatment is not available or is not clinically effective. If there is likely to be a significant number of patients for whom the usual treatment is not clinically effective or not otherwise appropriate (for any reason) the fact that the requesting patient falls into that group is unlikely to be a proper ground on which to base a claim that the requesting patient is exceptional."
Much will obviously turn on what is meant a significant number. Is it necessary to try to ascertain the overall number of patients in question or is it a proportion of those who suffer a condition? A reasonable approach would suggest the latter, albeit there will be difficulties in making an assessment on either approach.
"To meet the definition of exceptional clinical circumstances there must be an NHS CB policy in place that describes the availability of the requested intervention and your patient must demonstrate that they are both:
Significantly different clinically to the group of patients with the condition in question and at the same stage of progression of the condition
AND
Likely to gain significantly more clinical benefit than others in the group of patients with the condition in question and at the same stage of progression of the condition."
The claimant's condition is not progressive so that reference to the same stage of progression is not applicable. But a sensible approach to what is intended will mean the same failure of the usual treatment to achieve the necessary benefit to the patient.
"The grounds will usually arise out of exceptional clinical manifestations of the medical condition as compared to the general population of patients with the medical condition that the patient has."
"? The application states that this patient has not responded to standard treatments and the supporting information from the school and other assessments indicate functional impairment. However, there is insufficient information on symptom severity using recognised scoring systems to enable an IFR panel to be clear of how far away from the usual response range this patient's symptoms may be and to be able to consider her case in the context of other paediatric patients with this condition.
? The outcome measures are not described in sufficient detail to enable an IFR panel to reach a decision on the efficacy of the treatment in this case.
? At present there is insufficient information in the application form to justify why this patient should have access to this intervention ahead of others with a sub optimal response to standard treatment who will await clinical commissioning policy publication".
It informed Dr Rittey that if he chose to submit an updated application, he should specifically address the points raised in the bullet points I have set out above.
"There was insufficient evidence to support an argument that the patient would experience greater clinical benefit than other patients who were refractory to first line treatment. The fact that her condition was currently deteriorating was not sufficient as this information could not indicate what absolute benefit she might expect to receive nor how absolute benefit would compare with other patients, some of whom might be experiencing a deterioration".
"I note that to be clinically exceptional under the IFR policy, she has to be 'significantly clinically different to the group of patients in question and at the same stage of the progression of the condition'. I consider she is clearly significantly clinically different on the basis that all the existing attempts to manage her symptoms have not been successful and even on medication her sleep study results are consistent with someone with severe narcolepsy – as could be seen in someone unmedicated. This is a rare and extreme type of narcolepsy. Narcolepsy is not a progressive condition and therefore the issue of the progression of the condition is not applicable".
In paragraph 7, Dr Elphick had drawn attention to the worsening of the claimants' symptoms. Thus the claimant was, Dr Elphick said, clearly an exceptional case.
"A Commissioner should not give preferential treatment to an individual patient who is one of a group of patients with the same clinical needs. Either a treatment or service is funded in order to create the opportunity for all patients with equal needs to be treated or, if this cannot be afforded, it should not be commissioned as part of NHS treatment for any patients. The NHS CB considers that if funding for treatment cannot be justified as an investment for all patients in a particular cohort, the treatment should not be offered to only some of the patients unless it is possible to differentiate between groups of patients on clinical grounds. A decision to treat some patients but not others has the potential to be unfair, arbitrary and possibly discriminatory."