In an important test case where judgement was handed down today, Wednesday 27th July 2011, the Court of Appeal has supported the lawfulness of the NHS making decisions about which patients are entitled to NHS funded treatment on the basis of their clinical factors alone. David Lock QC of No5 chambers, instructed by Mills and Reeve LLP, acted for NHS North Staffordshire in this important case.

The Court of Appeal was giving judgment in a claim brought by Mr Tom Condliff who had been refused NHS funding for gastric by-pass surgery which may have assisted him to lose weight. Mr Condliff has a range of other medical problems including diabetes and sought this treatment in addition to the medical care he got for his other illnesses. 

The local NHS body, NHS North Staffordshire, along with many other NHS bodies, had a policy of only routinely funding gastric by-pass surgery for patients with a Body Mass Index of over 50. Mr Condliff had a BMI of 43. His legal team accepted that this was a lawful policy but argued that, in deciding whether to make an exception to that policy, the PCT was required to take account of Mr Condliff’s non-clinical social circumstances. It also argued that failure to so do would be an infringement of his human rights.

The Court of Appeal decided that allocating medical treatment on the basis of presenting medical circumstances alone was a fair way to decide who got NHS treatment. The court also decided that human rights law did not require the PCT to take account of patient’s non-clinical, social circumstances in making these difficult decisions.

Mr Mike O’Brien, a barrister at No5 chambers, who practises in healthcare law, was Minister of State for Health until May 2010. He welcomed this judgment saying: “These are difficult issues, but the court has made a well reasoned and sensible decision. It is important NHS bodies can make decisions about who should get NHS funded treatment under a fair and predictable system. 

“Permitting patients to seek to influence treatment allocation decisions by introducing non-clinical factors would be potentially discriminatory, would be arbitrary and would cut across the important principle for the NHS that patients presenting the same clinical symptoms should be offered the same treatment.

“This judgment shows that the Human Rights Act 1998 supports rational decision making by public bodies and does not undermine it”.