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Accusations of human rights violations and irrationality of policy, lay behind this failed judicial review hearing, after the denied care trust funding of laparoscopic gastric surgery upon a morbidly obese patient.
While often difficult to draw absolute clarity from NHS guidelines and framework policies, the matter dealt with here stems from a number of misapplications, breakdowns in communication and unwillingness to pursue a claim through the accorded channels. As may, or may not be common knowledge to many, it is operationally agreed that the associated Primary Care Trusts of the United Kingdom are given the freedoms to set (within reason) their own thresholds and qualifying criteria for certain procedures, one of which includes preventative gastric surgeries to patients seen as most in need.
Unfortunately on this occasion, the patients BMI fell short of the required level, despite neighbouring counties demonstrating more lenient grading for the same treatment. Subsequently, when his application for an individual funding request was refused on grounds that his condition failed to meet the prescribed eligibility, the call for judicial review commenced.
Resting upon four reasons for review, the claimant cited that (i) the policy guidelines set by the issuing body were discriminatory, in that they precluded social factors relevant to a claim for exclusivity, (ii) that as a result of such prohibition, art.8 of the Human Rights Act 1998 (right to respect for private and family life) was in contravention, (iii) that the same breach impacted upon art.6 of the HRA (right to a fair trial), and (iv) that the conclusive argument against funding, lacked clarity enough to satisfy the patient and acting representatives.
Upon close examination of the facts, it was agreed that while no such interferences of human rights could be seen to exist in the former article, the resulting decision of the latter would have remained the same regardless. This position was supported by the observation that social factors were immaterial when deciding the award of funds, and that the prerequisite medical evidence for exception was balanced enough to remain within the two articles presented. In closing, it was also found that the written opinion of the key adjudicating panel consultant, was determinable enough to uphold their decision to reject the application, and that in light of those collective arguments, a judicial review could not stand.
“It seems to me a legitimate point to say that for the PCT, essentially concerned with clinical matters, it will be difficult to make an objective assessment of individuals’ differing non-clinical factors, even if not impossible.”
“It is hard to see how non-clinical social factors are to be treated other than by generally ruling them in or ruling them out. Any other policy would be very complex and time consuming.”
“There is the further point that if social factors were permitted there would be many more application which would take longer to process with inevitable consequences for resources which would otherwise be available for others.”
If the Social Factors Exclusion, as a policy, does not violate A8 (in other words there is no need to consider non-clinical social factors insofar as they would not be considered anyway and insofar a they touched upon A8 rights) I fail to see how any decision which applied it is subject to some yet further A8 scrutiny.”
“If my primary analysis of the A8 position is correct, there is no scope for A6 to operate with reference to A8 because no A8 obligations rose at all.”
“The decision of the PCT was an administrative one, allocating or not allocating medical resources on the basis of evaluative judgements where there is no underlying “right” to any particular medical treatment, only target duty on the PCT to provide it.”