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Judgment Neutral
Citation Number: [2003] EWHC 2091 (Admin) IN
THE HIGH COURT OF JUSTICE QUEEN'S
BENCH DIVISION
THE
ADMINISTRATIVE COURT Royal
Courts of Justice
Strand London
WC2
Thursday,
17 July 2003 B
E F O R E: MR
JUSTICE OWEN -
- - - - - - THE
QUEEN ON THE APPLICATION OF LONGSTAFF (CLAIMANT) -v-
NEWCASTLE
UPON TYNE NHS PRIMARY CARE TRUST (DEFENDANT)
-
- - - - - - Computer-Aided
Transcript of the Stenograph Notes of Smith
Bernal Wordwave Limited 190
Fleet Street London EC4A 2AG Tel
No: 020 7404 1400 Fax No: 020 7831 8838 (Official
Shorthand Writers to the Court) -
- - - - - - MR
GRIME QC
(instructed by EVERSHEDS) appeared on behalf of the CLAIMANT MR
HAVERS QC
(instructed by NEWCASTLE UPON TYNE NHS PRIMARY CARE TRUST) appeared on behalf of
the DEFENDANT -
- - - - - - J
U D G M E N T (As
Approved by the Court) -
- - - - - - Crown
copyright� 1.
MR JUSTICE OWEN: This is a
renewed application for permission to apply for judicial review, permission
having been refused by Sullivan J on 16th June 2003.
The claimant seeks permission to challenge the decision of the Newcastle
NHS Primary Care Trust to refuse his request for treatment of his haemophilia A
with recombinant factor VIII. 2.
The facts that give rise to the application are succinctly summarised in
section 5 of the detailed statement of grounds.
The claimant, who was born on 5th February 1958, has haemophilia A and
requires treatment with a clotting factor, factor VIII.
Initially, the claimant was treated with factor VIII manufactured from
human blood products. But as a result of receiving such factor VIII at the Royal
Victoria Infirmary, Newcastle, the claimant has acquired the following
infections: hepatitis B, diagnosed in the mid-1980s; hepatitis C, diagnosed in
1994, and HIV and AIDS virus, diagnosed in about 1985.
Of the 95 haemophiliac patients who have tested positive for HIV at the
Royal Victoria Infirmary in Newcastle in recent years, it appears that 78 have
died. The claimant is in the
surviving group of 17. 3.
In about 2000 and as a result of the infections that he had acquired, the
claimant took the decision to refuse further treatment from factor VIII derived
from human blood plasma on the basis that it had proved impossible to guarantee
the safety of this product. 4.
On 17th February 2003, Dr Hanley, a consultant haematologist, wrote to
the defendant on behalf of the claimant, requesting funding for recombinant
factor VIII on the basis of clinical need.
The letter set out the factual situation in terms similar to those that I
have already recited. It went on to
point out that the claimant had received recombinant factor VIII in 2002 when he
went to the liver transplant unit in Birmingham to undergo a liver biopsy.
The letter went on to set out the costs, which are considerable, of
recombinant factor VIII, and concluded with the following paragraph: "We
wonder whether, taking all the circumstances into consideration, it would be
possible to fund recombinant factor VIII for Mr Longstaff on the basis of
clinical need. Our concern is that
unless this decision is taken, he will continue to deteriorate and possibly die.
We appreciate that this is an extremely difficult situation and we would
be very grateful for your advice about the best way forward." 5.
Dr Bradford, the defendant's Director of Public Health, replied on 18th
February, saying that the request had been discussed by the management team, and
that the decision to refuse funding for recombinant factor VIII was based upon
the following: "1.
Clinically effective treatment (plasma derived FVIII) is available.
The current evidence is that this is as clinically effective as
recombinant FVIII. "2.
The patient does not fit the current criteria for recombinant FVIII and the
Department of Health has not established what the new phased criteria will be.
However, it is likely to be based on age bands that will not include this
patient in the initial tranche. "3.
The patient is currently choosing not to have plasma derived FVIII treatment.
This is his choice and we understand he is aware of the consequence of
his decision." 6.
Dr Hanley wrote again on 11th March, asking for the question to be
reconsidered, and explaining that he had discussed the situation with the
claimant, who was adamant that he would not consent to treatment with plasma
derived products. 7.
Dr Bradford replied to that letter on 18th March.
The relevant paragraphs of the letter read as follows: "I
have discussed this matter at length at today's management team meeting.
We have not found sufficient new evidence or information that supports a
change in our previous decision. Therefore
the position remains as: (1)
Plasma derived FVIII should be used when required or accepted by the patient for
prophylaxis or routine treatment of bleeds.
(2)
In the event of acute life threatening bleeds Recombinant Factor VIII could be
used as previously agreed by Dr Laker and Dr Freake." 8.
The claimant advances a number of grounds for the proposed challenge to
the defendant's decision. First, it
is submitted that the first ground for refusing the request, as set out in the
paragraphs above, is an insufficient and therefore improper ground.
In my judgment that argument is unsustainable.
In the Department of Health Health Service Circular, HSC 1988/033, the
view of the Department of Health with regard to the clinical case for
recommending the general use of recombinant factor VIII was set out in the
following terms: "The
Department of Health's view remains that the clinical case for
recommending the general use of Recombinant Factor VIII has not been made.
Plasma derived Factor VIII has had a very good safety record since the
introduction of viral inactivation processes in the manufacture of blood
products in 1985. Further, there is
no evidence that the Recombinant product is more effective."
9.
The first ground for the refusal of the request reflects that view, and
it cannot sensibly be suggested that the defendant was not entitled to take the
same view as the Department of Health, or that the ground is insufficient or
improper. 10.
The second ground of refusal was directed to the current criteria for
treatment with recombinant factor VIII. It
also refers to HSC 1988/033. Paragraph
4 of the circular provides as follows: "However,
the recent concerns about the theoretical risk of human to human transmission of
nvCJD have raised particular anxieties in the haemophilia community about the
possibility of blood born infections though plasma derived products.
While fully recognising that the risk of nvCJD transmission through blood
products is theoretical and unquantifiable, given their past experience of HIV
and hepatitis C transmission through plasma derived Factor VIII, the Secretary
of State considered that this new fear had raised particular concern for people
with haemophilia A. Accordingly, in
response to strong representations from the Haemophilia Society, particularly in
relation to the effect which such fears have on families with haemophiliac
children, the Secretary of State decided that Recombinant Factor VIII should be
made available to all those under the age of 16 who are not already receiving
it, and to new patients (those previously untreated with plasma derived
products)." 11.
The claimant addresses a number of criticisms in relation to this ground;
but in essence submits that the defendant appears to have resolved the issue on
the basis that the claimant did not fall within the categories specified in the
circular. 12.
The circular does not exclude the treatment of those falling outside
those categories with recombinant factor VIII.
In the face of the documentary evidence currently available, it is, in my
judgment, open to argument that the defendant misapplied the guidance in HSC
1988/033 by treating the categories specified in it as exclusive.
13.
The third ground for refusal relates to the claimant's own refusal to
receive treatment by plasma derived factor VIII.
At paragraph 12 of the grounds for the application, it is submitted on
behalf of the claimant that: "The
Defendants appear here to be using the Claimant's personal decision about one
type of treatment (blood plasma derived Factor VIII) as an actual ground or
factor in deciding against funding a different treatment for him (Recombinant
Factor VIII). The Defendants are
purporting therefore to take account of an irrelevant matter; and are therefore
acting unreasonably." 14.
The ground as formulated is, in my judgment, misconceived.
The refusal of blood plasma derived factor VIII by the claimant cannot
have been an irrelevant factor. But
the weight to be attached to that factor must depend upon the reasons for the
refusal. Whilst it is not for this
court to undertake the exercise of evaluating the weight to attach to that
factor, there is nothing in the material before me to indicate that the reasons
for the decision by the claimant were taken into account by the defendant in
arriving at its decision. In those circumstances, I am satisfied that it is arguable on
the material presently available -- and I emphasise, on the material presently
available -- that the defendant erred in its approach to the claimant's decision
not to receive plasma derived factor VIII treatment.
15.
There are two further strands to the claimant's application.
The first, a claim under the Disability Discrimination Act 1995, is
closely related to the case advanced in relation to the second of the grounds on
which funding for treatment with recombinant factor VIII was refused.
It adds little to that ground but, in my judgment, does give rise to an
arguable case. Permission is also
given in relation to it. 16.
The second, a claim under the Human Rights Act, is, in my judgment,
without any substance for the reasons set out in the defendant's skeleton
argument: namely, that Article 2 of the Convention is not engaged in the present
case, and that the claim based on discrimination contrary to Article 14 is
unsustainable since Article 14 of the Convention has no freestanding life, but
applies only in conjunction with one of the other substantive rights guaranteed
by the Convention. 17.
Accordingly, there will be permission to apply for judicial review of the
decision of the defendant refusing funding for recombinant factor VIII, on the
grounds set out in paragraphs 8 to 12 of the detailed statement of grounds,
modified in the manner that I have indicated, and in relation to the arguments
advanced under the Disability Discrimination Act.
18.
Mr Grime, that leaves the question of interim relief. 19.
MR GRIME: Yes. The application for interim relief is on page 3 of the claim
form, as your Lordship has seen. I
do maintain that application. I do
not understand it to be the case that there is any disadvantage, save a
financial one, to temporary treatment with recombinant factor VIII.
In other words, it will not do the defendant any harm if, for example,
his claim eventually fails, if in the meantime he is receiving. 20.
MR JUSTICE OWEN: Yes.
Mr Havers, I need not address you as to that. 21.
The claimant also seeks a mandatory order that the defendant fund
recombinant factor VIII treatment pending the resolution of his application.
I do not propose to grant such interim relief for two reasons.
Firstly, the defendant has agreed that the treatment of recombinant
factor VIII may be provided if the claimant presents with a life threatening
bleed. Secondly, and as is
submitted by Mr Havers, to grant such interim relief will be to pre-empt the
substantive hearing. 22.
Mr Grime, that leaves the question of an expedited hearing. 23.
MR GRIME: Yes. Your Lordship has just indicated the willingness of the
authority to fund treatment for a bleed of specific sorts of treatment.
But as Dr Hanley's letter made clear, this is a gradually deteriorating
patient, so in fact time is important even absent -- 24.
MR JUSTICE OWEN: Yes.
Well, I will hear Mr Havers on that. 25.
MR HAVERS: I do not oppose
the application. 26.
MR JUSTICE OWEN: Very well.
I will order that there should be an expedited hearing of your
application, Mr Grime. 27.
MR GRIME: The matter of
costs? 28.
MR JUSTICE OWEN: Yes. 29.
MR HAVERS: In my submission,
costs ought to await the substantive hearing. 30.
MR JUSTICE OWEN: Yes.
The costs will be reserved. 31.
MR GRIME: I do not seek any
further directions from your Lordship. 32.
MR JUSTICE OWEN: Thank you
both very much for your assistance. |