2010 10 Health Care

Monday 1 November 2010

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R (on the application of Andrew Michael March) v Secretary of State for Health [2010] EWHC 765 (Admin) (Holman J): The claimant challenged a decision of the Secretary of State not to accept a recommendation of an independent inquiry into the supply of contaminated blood to NHS patients. In the 1970s and 1980s NHS patients had become infected with HIV or hepatitis C from contaminated blood products. A scheme was developed to provide funds on an ex gratia basis to sufferers and their dependants. A non-statutory inquiry recommended that the payments should be at least equivalent to the much higher compensatory payments made under a scheme for Irish sufferers. The court held the Secretary of State’s reason for rejecting the inquiry's recommendation that ex gratia payments to NHS patients treated with contaminated blood should match the higher level of compensatory payments made by the Irish government had contained a material error of fact and the decision was quashed. Click here for transcript.

AC v Berkshire Primary Care Trust & EHRC (Intervener) [2010] EWHC 1162 (Admin) (Bean J): AC sought a judicial review of the Defendant’s refusal to fund breast augmentation surgery for her. AC had been born male and had been diagnosed with Gender Identity Disorder (GID). Although AC had begun hormone treatment and had taken a female name there she made no application for a certificate under the Gender Recognition Act 2004 and legally remained male. Under its policy on treatment for GID, the Defendant was prepared to fund "core" surgical procedures, which included genital reassignment surgery. The Defendant was not prepared to fund breast augmentation surgery, classified as a "non-core" procedure. Patients wishing to undergo funded breast augmentation surgery had to satisfy the criteria in the Defendant's policy on cosmetic breast surgery and breast augmentation as a low priority procedure. However, the policy indicated patients with a congenital absence of breast tissue might be eligible if there was a related effect on their health and a reason to believe that surgical intervention would improve their health status. AC wanted breast augmentation because she was disappointed with the extent of the breast development she had achieved with hormone therapy and psychiatric evidence was adduced as to the adverse effects of this therapy. The court on dismissing the application held the policy under which breast augmentation was classified as a 'non-core' procedure in terms of treatment for GID which was not therefore routinely funded by the NHS, was not irrational and it did not discriminate against transsexual patients. Click here for transcript.

TTM (by his litigation friend TM) v (1) London Borough of Hackney (2) East London NHS Foundation Trust & Secretary of State (Interested Party) [2010] EWHC 1349 (Admin) (Collins J): TTM sought a declaration that his admission to hospital under section 3 Mental Health Act 1983 was unlawful, damages under Article 5(5) of the ECHR, permission to claim damages against the first Defendant local authority under, and a declaration that section 139(1) and section 6(3) of the Mental Health Act 1983 were incompatible with the ECHR. On dismissing the claim the court held a person admitted to hospital under the section 3 Mental Health Act 1983 despite his brother's objection under section 11(4)(a), and subsequently granted a writ of habeas corpus, had no reasonable prospect of success in any negligence claim against the approved mental health professional who admitted him or the responsible NHS trust because although that health professional had made a mistake there was an absence of bad faith and negligence. Further TTM’s detention was not unlawful in domestic law so that there was no breach of article 5 and no claim for compensation under article 5(5) and there could be no claim under section 7 of the HRA 1998. However, permission to appeal to the Court of Appeal was granted. Click here for transcript.

DH NHS Foundation Trust v PS (by her litigation friend the Official Solicitor) [2010] EWHC 1217 (Fam) (Sir Nicholas Wall (P)): The applicant NHS foundation trust sought declarations that PS undergo necessary surgery. PS has significant impairment in her intellectual functioning as a consequence of a learning disability and did not have capacity to make decisions concerning her future medical treatment or to conduct proceedings. PS was diagnosed with cancer of the uterus and her doctors were of the opinion that she needed to undergo a hysterectomy and removal of her fallopian tubes and ovaries, otherwise the tumour would spread and lead, ultimately, to PS's death. PS’s condition and phobias of hospitals and needles was such she would not submit to the operation. The court authorised an NHS trust to use force, if necessary, to sedate and convey a patient to hospital to ensure that she underwent necessary surgery in circumstances where she not only lacked capacity but suffered from phobias of hospitals and needles. Also following the operation, it would be necessary to detain PS in hospital during the period of post-operative recovery. The court held If it was in PS's best interests to have the operation, it was in her interest to recover appropriately from it and, thus, it was not necessary to invoke the deprivation of liberty provisions under Schedule A1 to the Mental Capacity Act 2005. Click here for the transcript.

Intercare Direct Ltd v Pfizer [2010] EWHC 600 (Ch) (Roth J): Intercare applied for an interim mandatory injunction that Pfizer supply it with a certain drug for the treatment of kidney and gastrointestinal cancers. Pfizer manufactured and supplied the drug SUTENT for treatment of tumours. In 2009, final guidance was provided by the National Institute of Clinical Excellence rendering the drug available to patients on the NHS. Pfizer introduced a policy whereby it would only supply SUTENT to customers in possession of a hospital prescription or where there was an emergency need. The policy was introduced to combat stock shortages in the UK amidst concerns that the drug was being ordered to be exported. Intercare had been supplied with the drug on three occasions but then Pfizer required Intercare to disclose information relating to its hospital contracts, justifying its need for the drug. Intercare refused to provide such information and issued a claim coupled with an application for urgent interim relief. The court refused to grant Intercare an interim mandatory injunction compelling a Pfizer to provide a Intercare with a certain drug, as Intercare had failed to establish that it would succeed at trial in proving that the Pfizer was abusing its dominant position in relation to the supply of that drug.

NHS White Paper, Equity and excellence: Liberating the NHS, sets out the Government's long-term vision for the future of the NHS. It sets out how the Government will:

  • put patients at the heart of everything the NHS does;
  • focus on continuously improving those things that really matter to patients – the outcome of their healthcare; and
  • empower and liberate clinicians to innovate, with the freedom to focus on improving healthcare services

The Department of Health is consulting on elements of these proposals. Details on how to respond can be found in the White Paper and closing dates appear as 11 October 2010. Click here for link to White Paper. See King’s Fund blog “Ten Challenging Questions about the White Paper”.

Re D[2010] COP (unreported) 29/9/10 (Macur J): D lacked the capacity to decide on medical treatment for her prolapsed uterus. D had a delusional belief that her condition was normal and that she did not did require medical treatment. The court held It was in D's best interests to receive surgery. If her condition was not treated it could be life-threatening. Further the court held the proposed restraint and deprivation of liberty, including a general aesthetic six days before the surgery, was authorised if absolutely necessary, as it was deemed to be in D’s best interests. Click here for newspaper report.

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