R (C) v Berkshire Primary Care Trust (2011)

English Medical Law

R(C) v Berkshire Primary Care Trust
‘The Danish Girl’ by Gerda Wegener

Psychological dependence upon a surgical procedure to establish a definite sense of identity, lies within the heart of this matter when a transgender patient experiences disappointment with the outcome of hormone treatment and seeks remedy from the National Health Service (NHS).

Having experienced a life of emotional turmoil and unrelenting conflict with the gender nature afforded him, a man takes the steps required to adjust his gender to that of a woman, inasmuch as reassignment procedures will allow. While not yet at the point of invasive surgery, the appellant elected to follow course of therapy that by its own methodology, would increase his existing breast tissue to that of an average woman; thereby removing any fears that members of society would, on a superficial level, ever confuse him with a man.

At the conclusion of the programme, the appellant was left with only a minimal increase in tissue growth, and the inadequacy felt lingered to the point of mild depression and disillusionment with both himself and the future. Following consultation with his consultant psychiatrist, his case was put forward to the relevant Primary Care Trust, in the hope that both the poor outcome of the biological intervention and the circumstantial criteria of the Gender Dysphoria and Cosmetic Breast Surgery Policies would allow funding for breast augmentation (augmentation mammoplasty) to redress the balance.

Having had prior experience of transgender applications for the mammoplasty, and in the knowledge that current policy considers the procedure to be low priority, the Primary Care Trust conducted independent research to establish if there was sufficient data to support the claim that breast augmentation was important enough to have a positive impact upon a patient’s life and mental health, in claims where such surgical adjustments are compellingly argued.

Despite previous case discussions around the subject, the results of the investigative report concluded that there remained insufficient justification to amend the policy, and so unless in the case of extreme symptoms, the funding could not be provided, and that the patients would need to seek their own source of revenue. When first refused, and in consideration of two complaints to the Health Commission, the second application failed again, before a request for judicial review was presented. On this occasion, the application for review was dismissed, before the appellant moved to argue for funding on grounds of human rights violations and discrimination.

Citing art.8 of the Human Rights Act 1998 (right to respect for private and family life) and art.14 (prohibition of discrimination), it was contested that denial of surgery was a breach of that right, and constituted excessive demands for an emotionally distressed transgender to suffer beyond that of an equally unhappy natural woman when determining eligibility for funding; and that such distinction resulted in nothing less than discrimination between the two types of patient.

Having evaluated the history behind the matter, and the recent investigatory methods used by the NHS, it was concluded that great attention had been placed upon the equality of a patients emotional well-being, and that unilateral guidelines were exacting enough to determine when funding was appropriate. This decision was supported in the decisory notes, which read that any patient seeking to obtain funding for policy procedures must demonstrate (i) that the patient’s case constitutes exceptional circumstances, (ii) that there is evidence of significant health benefit from the requested treatment, and (iii) there is evidence of the intervention improving health status.

On this occasion, the court quickly agreed that despite evidence of ‘chronic mild to moderate distress’ conveyed by the patient’s doctor, there was simply nothing to suggest that his situation was any more exceptional than a patient denied the resources, or that his symptoms were similar to those qualifying, transgender or otherwise, thus the court upheld the claim dismissal while also holding that:

“[G]ender and clinical needs are both relevant characteristics. Their aetiology is relevant diagnostically, but what are more critically relevant are the ethical and clinical judgments of the PCT, provided these do not transgress the law.”

R (Condliff) v North Staffordshire Primary Care Trust (2011)

English Medical Law

R (Condliff) v North Staffordshire Primary Care Trust
‘Daniel Lambert’ by Unknown Artist

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 on this occasion stemmed 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 (PCT’s) 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 (i) that 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 closer examination of the facts, it was agreed that while no interferences of human rights could be seen to exist in art.8, the resulting decision of art.6 would have remained the same regardless, while 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, while the court held that:

“[P]rovided that it acts rationally, a PCT may set policies allocating medical resources and treatments even though the effect thereof is that some people will be denied treatment from which they would undoubtedly benefit.”

R (Rogers) v Swindon NHS Primary Care Trust (2006)

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.”

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health (2006)

English Medical Law

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health
‘Arthritic Hands’ by Tim Benson

Finally decided within the European Court Of Justice (COJ), this protracted and game-changing case determines well the principle of unreasonableness, whether individually or in this instance, as exercised through the actions (or inactions) of the National Health System (NHS) of Great Britain.

When diagnosed as having severe osteoarthritis in both hips, an elderly lady was duly assigned a slot in a typically lengthy waiting list, on the provision that her operation would at least begin inside a twelve-month period, and that no other adjustments could be made under the existing policy framework.

Clearly distressed and left in constant pain, the patient took it upon herself to request a permission form that could enable her to seek medical treatment in another EU Member State at cost to herself, before claiming back those costs under the umbrella of art.49 of the EC.

When authorisation for her application was refused on the grounds that the inherently free infrastructure of the NHS prevented such claims as a matter of course, the applicant went ahead and secured an operation in France regardless of the setback.

During the period between the successful operation and her application for authorisation, the patient’s condition worsened to the degree that her consultant elevated her need for surgery, an action that reduced the waiting time from twelve months to three to four months. Unfortunately, this still rendered her unable the receive the care (and ultimately adequate pain relief) she needed, and so her paid surgery went ahead two months before any provisional opening was made available to her in the UK.

When pursuing the right to seek judicial review in order to recoup her costs under her individual EU rights, the High Court dismissed her claim under constitutional grounds, while her subsequent appeal against such immediate objection escalated matters to the Appeal Court, who themselves referred it to the COJ.

There, after much scrutiny and comparison with similar EU cases, the Court held that any refund issued in respect of treatment sought in another Member State did not contravene s.152(5) of the EC, which provides that:

“Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services and medical care.”

And furthermore, any excuse offered with regard to waiting times and the limitations of such healthcare provision failed to satisfy the individual rights offered under art.49 of the EC, while also holding that:

“[T]he special nature of certain services does not remove them from the ambit of the fundamental principle of free movement.”

Public Body Duty of Care in Tort

Insight | February 2017

Public Body Duty of Care in Tort
Image: ‘Vicarious Trauma’ by Amy Gaskin

Within the field of tort, there are a number of victims that are recognisable for damages in extenuating scenarios. These include rescuers, involuntary participants, communicators of shocking news, witnesses to self-harm and those held under an assumption of responsibility by the defendant.

There are of course exemptions from such events, in particular public bodies (despite being funded by tax payers money). One argument for such paradoxical exclusion is that making public bodies pay for their mistakes would place a strain upon public services funds, and lead to division of public resources in times of need.

This ironically raises the question of whether liability should exist when the public body has the power to act despite no duty to do so? The House of Lords determined that no duty of care was owed in respect to negligent use of power, unless that action made the claimant’s situation worse than it was before, while jurisprudence around the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA) altered the previous threshold regards duty of care.

In D v East Berkshire Community NHS Trust and others, ‘defensive practices’ were seen as a consequence of liability on the part of the local authority staff, which would compromise their standard of work, therefore it was subsequently felt that a duty of care was owed to children in extraction cases, but not to all parties.

In the earlier case Osman v Ferguson, and the later Osman v UK, the police were initially offered immunity from a duty of care until the parents of a murdered pupil appealed to the European Court of Human Rights (ECtHR), under the observance that while art.6 of the Human Rights Act 1998 provided public body immunity, it denied the family from receiving a fair trial, while no attempts were made to distinguish Osman from the earlier Hill v Chief Constable of West Yorkshire, despite marked differences.

Of notable interest, is the knowledge that the fire service has no duty of care to respond to an emergency call or to turn up and attempt to fight a fire. It does however, have a positive duty not to make matters worse in the event that they do attend such events, albeit with the caveat that it does not have a duty of care to prevent the fire from spreading. On the upside, at least the ambulance service does owe a duty of care to individual claimants in specific circumstances, while also possessing a duty to respond to emergency calls, although this is only because the domestic courts view the service as an extension of the National Health Service (NHS), which itself owes a duty of care to all of its patients.

Much like the fire service before, the coastguard owes no duty of care to respond to calls from people in trouble at sea, only a duty to not make matters worse when they arrive. While in contrast, the British armed forces are only held to owe a duty of care when the defendant can be said to have assumed responsibility to the client, just as little comfort is taken in the knowledge that there is no duty of care owed to the public under battle conditions, or in times of threat.