2011 04 Health Care

Sunday 1 May 2011

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R (on the application of AC) (Appellant) v Berkshire West PCT (Respondent) & EHRC (Intervener) [2011] EWCA Civ 247 (Lord Neuberger of Abbotsbury MR, Sedley LJ, Hooper LJ): The Court of Appeal, in dismissing the appeal held that under the terms of its gender dysphoria policy, Berkshire West PCT had been entitled to refuse to fund breast augmentation surgery for a trans-female on the basis that there was limited evidence that it would provide a clinical benefit. The Respondent PCT refused to fund breast augmentation surgery. AC, who had been born male, had been diagnosed with gender identity disorder. AC had started the gender reassignment process by way of hormone treatment, but was not satisfied with the augmentation of her breasts. Under the Respondent’s policy the trust was prepared to fund "core" surgical procedures, but was only prepared to fund "non-core" procedures, such as breast augmentation, in exceptional circumstances, as there was limited evidence of their clinical effectiveness. AC was excluded from that policy on the grounds that to do otherwise would have involved discriminating against natal women seeking the same procedure. The trust went on to consider whether the requested surgery could be funded under its cosmetic breast surgery policy as that policy applied to natal females and classified breast augmentation as a "Low Priority" procedure. The Court of Appeal held it was clear from both policies that the term "cosmetic" did not mean merely "aesthetic". The Court considered the thrust of AC's complaint was that the trust had not given sufficient weight in the policy to the clinical importance of breast augmentation therapy to a trans-female who had undergone hormone therapy, but whose breasts had not developed to a sufficient size and whose progress to physical womanhood was thereby impeded but the Court held the trust could not be required to fund breast augmentation surgery in those circumstances unless there was evidence of a clinical benefit, and in this case the Respondent had reasonably concluded that there was an absence of such evidence [see paras 27-30]. Further from the Respondent's decision letter that it had considered both policies. Having reached the conclusion in accordance with the gender dysphoria policy that AC's application failed, it had gone on to consider the cosmetic breast surgery policy [paras 31-32]. The Court further held there was no discrimination in the decision made. (click here for transcript).

Department of Health v Information Commissioner (2011) (Cranston J): The Court held that anonymised statistical information held by the Department of Health as to the number of patients who had had late terminations on medical grounds was not personal data and it was appropriate for the statistics to be published. (transcript pending)

R (on the application of Condliff) v North Staffordshire PCT [2011] EWHC 872 (Admin) (Judge Waksman QC): In dismissing the claim the Court held that because the right to respect for private and family life was not generally engaged in healthcare resource allocation, a primary care trust's individual funding request policy, which provided that non-clinical, social factors could not be taken into account in determining exceptionality, did not breach Article 8 of the European Convention on Human Rights. The claimant sought judicial review of a decision of the defendant to refuse his renewed individual funding request (IFR). The Claimant was morbidly obese and wished to have surgery. He did not qualify for the surgery under the trust's relevant policy but had made his IFR on the grounds of exceptionality. The Defendant’s IFR policy contained a "social factors exclusion" which meant that social, non-clinical factors could not be taken into account in determining exceptionality. The Court held that social factors and Article 8 private life factors were not synonymous. The Court considered that some private life factors might have clinical significance and would therefore not be rejected and some social factors would not amount to private life matters. It would therefore be wrong to characterise the social factors exclusion as a blanket exclusion of Article 8 factors. However, the Court held that the “social factors” exclusion was at least capable of excluding factors falling within the wide definition of private life under Article 8 and it was necessary to consider its lawfulness. The Court held that Article 8 was generally not engaged when a public body decided how to allocate medical resources and it had a wide discretion in such an exercise. In relation to the general allocation of medical resources, there was therefore no positive requirement for a framework so that rights under Article 8 could be adjudicated upon or enforced [see paras 26, 30-31, 33, 41-52 of judgment]. In the absence of any engagement of Article 8 in the general allocation process was a powerful militating factor against a positive duty to consider art.8 rights in the IFR context. If medical resource rationing did not generally attract Article 8 then a potential restriction on some non-clinical Article 8 factors could not be said to be an unlawful interference with that system. Thus there was no such positive obligation in relation to IFRs and the social factors exclusion did not breach Article 8 [paras 54, 56-64]. This was the result of a fair balancing exercise between individuals seeking treatment under IFRs and the medical requirements of the community as a whole [paras 64-67]. The Court went on to hold that since Article 8 was not engaged, there was no scope for Article 6 to operate. The fact that the decision might have rejected some private life factors did not mean that it had "determined" the Claimant’s rights under Article 8 for the purposes of Article 6 and in any event, Article 6 would not have been engaged because the trust's decision had been an administrative one, allocating or not allocating medical resources on the basis of evaluative judgments where there was no underlying "right" to any particular medical treatment [paras 75, 78-79]. (click here for transcript).

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