2011 08 Health Care

R (on the application of Condliff) v North Staffordshire PCT [2011] EWCA Civ 910 (Maurice Kay LJ, Hallett LJ, Toulson LJ): On dismissing the appeal the Court of Appeal held that a primary care trust's individual funding request policy, which provided that non-clinical, social factors could not be taken into account when determining exceptionality, did not breach Article 8 of the European Convention on Human Rights. As a result, the Defendant trust was entitled to refuse funding for a morbidly obese individual to have a gastric by-pass. The appellant against the decision ([2010] EWHC 872 (Admin)) dismissing his claim for judicial review of the decision of the North Staffordshire PCT to refuse his renewed individual funding request. The Appellant was seeking to have gastric by-pass surgery funded by the NHS but he did not qualify for the surgery under the Defendant’s policy relevant but made an individual funding request on the grounds of exceptionality which stated that when determining exceptionality "social factors", which were non-clinical factors, would not be taken into account. The Appellant’s claim was that the PCT’s policy breached his Article 8 rights. The Court of Appeal held that the Appellant’s C's health, as he is morbidly obese, was having a seriously adverse effect on his private and family life. The court held that without surgery this adverse effect would continue and was likely to become worse. Nevertheless the Court held that the application of the individual funding request policy did not involve a lack of respect for the Appellant's private and family life. The policy of allocating scarce medical resources on a basis of the comparative assessment of clinical needs was intentionally non-discriminatory and the function of allocating limited resources strictly according to the PCT’s assessment of medical need was to do no more than to apply the resources for the purpose of which they were provided without giving preferential treatment on non-medical grounds. Any previous attempts made to impose a positive obligation on the state to provide support for an individual under Article 8 had been unsuccessful. The Court held that Article 8 could not be relied on as giving rise to a positive duty to take into account welfare considerations wider than the comparative medical conditions and medical needs of different patients and that the PCT was entitled to set an individual funding request policy which reflected what it reasonably considered to be the fairest way of treating patients. Further on a review of authorities the Court held that no legal authority led to the conclusion that the PCT's policy was to be regarded as showing a lack of respect for the Appellant’s private and family life so as to engage Article. Furthermore the Court held that even if Article 8 was engaged there were legitimate equality reasons for the PCT to adopt the policy and its decision was well within the area of discretion or margin of appreciation open to it. Click here for transcript.