R (Rogers) v Swindon NHS Primary Care Trust

English Medical Law

 

R (Rogers) v Swindon NHS Primary Care Trust
‘In the Pink!’ by Shelley Ashkowski

Irrationality and subsequent weakness of policy become the key ingredients of this appeal case between an individual and local NHS trust when a breast cancer patient is diagnosed with a particular form of metastasis and the consultant responsible for their treatment prescribes a medicine that while proven to significantly prevent the progression of this specific virus, is a brand still yet to undergo full inclusion within the regulatory core of acceptable National Health Service medicines.

After the patient volunteered to self-fund her course of treatment, the spiralling costs quickly proved overwhelming, at which point she applied to her regional Primary Care Trust to request funding (an action not frowned upon in certain circumstances).

When the trust refused to provide any financial assistance on grounds that the drug used was not officially recognised and therefore subject to certain qualifying criteria, the appellant sought to challenge the refusal through judicial review, citing an inherent failure to properly establish sound reasons for non-funding, despite statistical supportive evidence, first-hand testimony and a general position of endorsement by the Secretary of State for Health.

When examined in the Court of Appeal, the emerging facts showed a lack of collective agreement as to exactly why funding for this specific treatment would be prohibited, along with an erring of caution to offer those funds. However this proved a baseless hesitation when held against the ‘ethical over monetary’ line taken by the Health Secretary (and regulatory bodies) and their drive for swift inclusion of this new weapon in the fight against breast cancer.

Upon ruling in favour of the patient, it was advised by the Court that far from being in any position to ‘rubber stamp’ the uninterrupted sponsoring of the appellant’s course of treatment, it was left to the Primary Care Trust and ruling bodies to further refine their criteria for approved patient administration in order that future prescriptions would avoid undue objections during the uptake of other medicines, while holding that:

“People have equal rights of access to health care, but there may be times when some categories of care are given priority in order to address health inequalities in the community.”

H v Associated Newspapers Ltd and N (A Health Authority) (2002)

English Medical Law

H (A Healthcare Worker) v Associated Newspapers Ltd and N (A Health Authority)
‘HIV Aids’ by Judy Seidman

Balancing the need to protect individual privacy against those of public interest is both difficult and often painful for the party that loses, and so when a healthcare worker retired through ill-health, it was later discovered that HIV infection was the primary cause for their departure.

On this occasion the employer followed procedural rules during the ending of the relationship, but later found themselves torn between performing an obligatory ‘look back’ exercise that required contact with former patients assigned the retiree’s care when carrying our their duties while assisting with the request that the former healthcare worker’s privacy be respected (the former element was still uncertain due to a change of guidelines and therefore such actions may have proven unnecessary pending the revised policy).

However the escalating factor in this appeal case was the knowledge that while the infected worker was contractually obliged to submit the medical records of those treated under the NHS, a reasonable percentage of the remaining patients were seen privately, and thus liable for protection against disclosure under the Data Protection Act 1998.

Shortly after the ‘look back’ request was made, the former employee secured a court order preventing any publication of patient records that might allow for disclosure of the infected party on grounds of unlawfulness and a fundamental right to individual privacy.

After a newspaper learned of the matter, it published an article on grounds of public interest while breaching a previously issued restraining order, and aware that disclosure of the health authority at least would soon allow readers to make educated guesses as to the identity of the infected party.

This led to action being taken against the newspaper on the footing that the previously published article had indirectly disclosed the identity of the healthcare worker through disclosure of the gagging order and the subject to which it applied.

There were of course a number of other factors that required diligence from the courts, but the essence of the argument also addressed very sensitive and fear-laden concerns that threatened disproportionate cost implications upon the State, along with a risk of flagrant sensationalism.

On this occasion, the court ruled that until such time as the new guidelines were issued, the newspaper must reduce the identities of both the employer and employee to initials so as to allow the nature of the matter to become publicly accessible while concealing the names of the two parties involved, while holding that:

“[I]f healthcare workers are not to be discouraged from reporting that they are HIV positive, it is essential that all possible steps are taken to preserve the confidentiality of such reports.”

 

Ahmad v United Kingdom (1982)

English Constitutional Law

Ahmad v United Kingdom
Image: ‘Mosque Muslim Art Painting’ by Richa Maheshwari

While paving the way for a number of similar ‘religious obligations’ versus ‘convention rights’ cases, this protracted legal discourse reveals a number of indiscretions, that in many respects, served to influence legislative and educational policy in the United Kingdom, and illustrate how laws evolve through the integration of cultural norms and progressive state cohabitation.

After working as a supply teacher within the mainstream schools arena for a considerable number of years, the Islamic applicant took issue with the government, upon grounds that his need (or at least doctrinal requirement) to attend a mosque on Friday afternoons was being denied by statute; and that subsequent operational policy created the violation of a number of constitutional rights afforded to all citizens of the United Kingdom.

Citing art.9(1) of the ECHR (freedom of thought, conscience and religion) and art.14 (prohibition of discrimination), the applicant protested that s.30 of the Education Act 1994 stood in immediate conflict with his need to manifest his religious beliefs every Friday between the hours of 1.30pm to 2.15pm. Having been employed by a number of London Borough schools prior to his decision to resign rather than reduce his working hours, the applicant had been given verbal allowances by one school, and shown strict opposition by another, which bore an inconsistent position of unwillingness to accommodate a religious need, which until recently, had never been expressed nor discussed at the time of his original appointment.

When it was submitted that the repeated failure of a Muslim man to attend a mosque (subject to relative distances) would likely result in a beheading in a country such as Saudi Arabia, the applicant expected that the same principles would apply under  domestic jurisdiction, and that those grounds, along with previous (albeit unofficial) allowances were sufficient enough to warrant time taken from his contractual duties, despite any inconvenience to teaching  staff, pupils or the school as a whole.

After failing to find those arguments upheld in the domestic courts, the matter wound up before the European Commission for Human Rights, where it was unanimously decided that the terms of the Convention were constructed in such as fashion as to allow interpretation and consideration of all religions and beliefs, not just those of the applicant; and yet when willingly accepting a position of employment that brings with it a set of express and implied terms, the accepting individual takes ownership of how that agreement might impinge upon their religious requirements or obligations of faith, and must therefore act accordingly, thus the Commission dismissed the application, while holding that:

“[E]ven a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position.”