Cambridge
Health Authority decided not to fund potentially life-saving treatment for a
young girl suffering from leukemia because it was expensive and that they
believed that it had less than 10 % chance of success. The girl’s father sought judicial review of
this decision. The Court of Appeal found
that the Health Authority had acted lawfully in its refusal. One of the considerations the authority was
entitled to take into account was its budget.
Difficult judgments have to be made as to how a limited budget is best
allocated to the maximum advantage of the maximum number of patients, and the
court defers to the Health Authority on those judgment. It also found it was
not part of the job of the courts to rule on the merits of medical
decisions-they could only rule on the lawfulness of such decisions.
R v Cambridge Health Authority
[1995] 2 All ER 129
R v Cambridge Health Authority, ex p B
COURT OF APPEAL, CIVIL DIVISION
SIR THOMAS BINGHAM MR, SIR STEPHEN BROWN
P AND SIMON BROWN LJ
10 MARCH 1995
Medical treatment �
Withdrawal of treatment � Refusal to allocate funds �
Judicial review � Minor aged 10 years �
Minor suffering from acute myeloid leukaemia �
Doctors in charge of minor's treatment advising that no further treatment could
usefully be administered �
Medical experts retained by minor's father advising that further treatment
worthwhile � Health authority refusing to fund
further treatment � Whether decision lawful �
Role of courts in determining whether health authority's decision lawful.
B, a 10 year old girl, was first
diagnosed as suffering from non-Hodgkins lymphona with common acute
lymphoblastic leukaemia in 1990. Treatment appeared to be successful but in
1993 she developed acute myeloid leukaemia. After further chemotherapy, total
body irradiation and a bone-marrow transplant the disease went into remission,
but B suffered a further relapse in January 1995 and the doctors treating her
gave her six to eight weeks to live. They were of the opinion that B should be
given no further remedial treatment but only palliative treatment to enable her
to enjoy several weeks or months of normal life prior to progression. B's
father sought further medical opinion and, in particular, that of two experts
who were of the opinion that further treatment, including a second bone-marrow
transplant, was possible. However, because of the unavailability of beds in the
only National Health Service hospital prepared to carry out such treatment, it
could only be administered privately. The proposed treatment would be
administered in two stages, the first being a further course of chemotherapy
costing �15,000, with an estimated 10 to 20%
chance of success, which would be followed, if remission was achieved, by the
second stage, a second bone-marrow transplant costing �60,000
which had a similar 10 to 20% chance of success. In the light of those
opinions, B's father requested the health authority responsible for his
daughter's care to allocate funds amounting to �75,000
for the proposed treatment. The health authority refused. B's father, acting as
her next friend, applied for judicial review of the health authority's
decision. Affidavit evidence filed on behalf of the health authority stated
that, in reaching the decision not to allocate further funds, consideration had
been given to:
(a) whether the proposed course of
treatment was appropriate for B, having regard to the clinical judgments of the
doctors who had treated B since the disease was first diagnosed and who had
performed the first bone-marrow transplant, whose opinion was that a second
transplant was not in B's best interests,
(b) guidance given by the Department of
Health in respect of non-proven or experimental treatment and the fact that the
proposed course of treatment for B was neither standard nor formally evaluated,
and
(c) whether the expenditure involved was
an effective use of resources given the small prospect of success and having
regard to the authority's responsibility to ensure that it had sufficient funds
for the treatment of other patients which was likely to be effective.
The judge refused to make an order of
mandamus directing the health authority to fund the treatment but made an order
of certiorari quashing the health authority's [1995] 2 All ER 129 at 130 -
decision not to fund any further treatment and requiring the health authority
to reconsider its decision on the grounds, inter alia, that it had not had
regard to the father's views as to B's best interests, that it had wrongly
refused to allocate funds because it considered a second bone-marrow transplant
'experimental', that when it referred to the use of resources it had not
adequately explained the funding priorities that had led to the decision, and
that it had wrongly considered the issue to be the expenditure of �75,000
when, initially, the only expenditure required was �15,000.
The health authority appealed.
Held �
On an application for judicial review relating to medical treatment the court
could only consider the lawfulness of the decision at issue and it was not for
the court to decide between conflicting medical opinions or to decide how a
health authority's limited budget should be allocated between opposing claims
on its resources. On the facts, it was clear:
(i) that the judge had been wrong to
criticise the manner in which the health authority had reached its decision,
since those taking the decision on behalf of the authority must in reality have
been very aware of the wishes of B's family,
(ii) that the health authority's
decision was not flawed because of the use of the expression 'experimental' to
describe the treatment, since the proposed treatment did not have a well-tried
track record of success and was at the frontier of medical science,
(iii) that a court was not in a position
to decide on the correctness of the difficult and agonising judgments which had
to be made by health authorities as to how a limited budget was best allocated
to the maximum advantage of the maximum number of patients, and
(iv) that the health authority had
correctly proceeded on the basis of allocating the total amount required or not
proceeding at all, since if the first stage were successful the authority would
have been bound to continue funding the second stage. It followed that the
appeal would be allowed and the judge's order rescinded (see p 136 b c g to p
137 b d to j and p 138 b to j, post).
Notes
For functions of health authorities in
general, see 33 Halsbury's Laws (4th edn) para 163.
Cases cited in argument
Brind v Secretary of State for the Home
Dept [1991] 1 All ER 720, [1991] 1 AC 696, HL.
Bugdaycay v Secretary of State for the
Home Dept [1987] 1 All ER 940, [1987] AC 514, HL.
Appeal
The Cambridge Health Authority appealed
from the order made by Laws J hearing the Crown Office list on 10 March 1995
granting an application by B, suing by her father as next friend, for an order
of certiorari quashing the authority's decision on 22 February 1995 not to fund
any further treatment of B (who was in the authority's care) by chemotherapy
and a second bone-marrow transplant. The facts are set out in the judgment of
Sir Thomas Bingham MR.
Nigel Pitt (instructed by Mills &
Reeve, Cambridge) for the health authority.
Bruce McIntyre (instructed by Sharpe
Pritchard, London, agents for Kerseys, Ipswich) for B.
[1995] 2 All ER 129 at 131
SIR THOMAS BINGHAM MR.
This is an application for leave to
appeal (and if leave is granted an appeal) against a decision of Laws J. The
case has been listed under the title 'Ex parte B' and the court has made a
direction under s 39 of the Children and Young Persons Act 1933 that nothing be
published which leads to the identification of the minor involved in the case.
The reasons for that order will be quite obvious as I summarise the facts. I would
supplement the formal order of the court by a special plea to those involved in
reporting this matter that, so far as possible, the case be reported in such a
way that it will not only prevent identification of the child but prevent even
the child herself realising that she is the subject of the report. The reason
for saying that is that the child is desperately ill to an extent that she
herself would not appreciate. Nothing could be more tragic than that she
should, by reading a newspaper or watching the television, learn even
indirectly of her own condition.
The order which is the subject of appeal
is an order of certiorari quashing a decision of the Cambridge Health Authority
not to fund any further treatment of the child involved in this case by way of
chemotherapy and a second bone-marrow transplant.
B is a child now aged 10. In September
1990 it was first diagnosed that she was suffering from what is technically
known as non-Hodgkins lymphoma with common acute lymphoblastic leukaemia. This
was treated with chemotherapy over a period of months. In August 1992 that
course of chemotherapy treatment was completed, for the time being
successfully.
Unhappily, the successful treatment did
not endure. In December 1993 the child developed acute myeloid leukaemia and
was treated for the second time with a course of chemotherapy. On this occasion
she underwent a course of total body irradiation, a fact of some importance
since it appears to be accepted by medical opinion that that is treatment which
no one can undergo more than once.
In March 1994 B underwent a bone-marrow
transplant. Again, for a substantial period of months there was every reason
for her family to hope and believe that the transplant had been successful.
Unhappily that turned out not to be so. In January 1995 she suffered a further
relapse of acute myeloid leukaemia. It is that relapse that has given rise to
the present proceedings.
At all times B's family, and in
particular her father, have strained every nerve to procure for her the best
possible treatment. They have always had, as one would expect, her best
interests at the very forefront of their minds. The father has deposed that
when this further relapse took place he consulted doctors at Addenbrooke's
Hospital in Cambridge, including Dr Broadbent, the doctor who had treated B
over the years since 1990. At that stage, Dr Broadbent's medical judgment was
that the child had a very short period of some six to eight weeks to live and
that no further treatment could usefully be administered.
Other doctors who had had the care of B
at earlier stages (in particular two doctors at the Royal Marsden Hospital in
London, one of whom had performed the bone-marrow transplant in March 1994)
were consulted, who shared the opinion of Dr Broadbent; the health authority
was invited to allocate funds for the treatment of B. The treatment involved
was potentially a further course of chemotherapy which, in this case, would be
a third course. If that was successful, and only if successful, that would be
followed by a second bone-marrow transplant operation.
B's father was unwilling and
understandably reluctant to accept the views expressed by Dr Broadbent and
others. He approached doctors in the United States. Certain doctors there
differed from the view which had been expressed
[1995] 2 All ER 129 at 132
by the English doctors and thought that
there was a substantial chance of further treatment being successful.
Unhappily, however, medical treatment in the United States does not come free
and does not come cheap. The cost of treatment by these experts in the United
States was, at least to English eyes, prohibitive. B's father accordingly
sought help from additional doctors in this country. In particular he
approached a notable expert in this field, Professor Goldman of the Hammersmith
Hospital, a professor at the Royal Postgraduate Medical School.
We have two letters of 14 and 17
February written by Professor Goldman to Dr Pinkerton of the Royal Marsden. In
his letter of 14 February, Professor Goldman wrote, having summarised briefly
the further relapse which had overtaken B:
'I had a long discussion with the father
about possible options for further therapy. In essence I agreed with the
alternatives that you set out. The compromise that I thought might be reasonable
would be to offer the patient further chemotherapy with the hope of achieving a
complete remission. A reasonable combination might be MAE [and I omit the
chemical names for which that is an abbreviation] because this should not
involve excessive additional cardiotoxicity. If complete remission could be
achieved, then one might contemplate a second transplant, either with the
original sibling donor or conceivably with a matched unrelated donor. I rank
the chance of success with this approach as less than 20 per cent.'
In his letter of 17 February, Professor
Goldman wrote, having had the benefit of a discussion with the consultant
paediatrician at the Royal Marsden:
'I stand by my view that it would be
reasonable to give [B] further chemotherapy with cytotoxic drugs in the hope of
achieving complete remission. I realise of course that this may not succeed but
I regard it as the best palliative approach to a patient with acute myeloid
leukaemia in relapse after bone marrow transplantation, whatever the age of the
patient. If the patient were fortunate enough to achieve complete remission,
one could contemplate a second transplant procedure. Obviously this is a high
risk strategy and one would need to think very carefully about approaches
designed to prevent relapse on a second occasion. This however would not be a
totally impossible task. This second transplant could in certain circumstances
be carried out at the Hammersmith Hospital in London. If a decision to give
further chemotherapy now were accepted, the issue arises as to where this might
take place. I understand that neither you [that is Dr Mellor] nor Dr Broadbent
in Cambridge is keen to undertake further treatment of this nature. We would do
so at the Hammersmith but just at present we have no bed availability and it
seems unlikely that any bed would be available within the next 2�3
weeks. In these circumstances, I have no option but to suggest to [the father]
that he seeks treatment in the private sector. I know for example that Dr Peter
Gravett would treat [B] with extreme efficiency and with some luck, a second
remission could be achieved.'
The officer of the health authority with
responsibility for contracting for the purchase of medical and surgical
services outside his authority is a highly qualified physician named Dr
Zimmern. On 21 February he wrote to B's father recording that he had spent much
of the day in detailed discussions with
[1995] 2 All ER 129 at 133
colleagues about B's care, including
discussions with Professor Goldman. He said he understood totally the father's
concerns and the sense of distress which he must feel. He added:
'Should there be any misunderstanding I
should state quite clearly that any decision taken by the [authority] will be
made taking all clinical and other relevant matters into consideration and not
on financial grounds. The [authority] has funded, and continues to fund, bone
marrow transplantations. The [authority] is also supportive of second, and in
difficult cases, third opinions and is grateful to have had the benefit of
Professor Goldman's opinion from the Hammersmith following her out-patient
consultation, which we understand was arranged by yourself. Dr Broadbent
confirms that she subsequently sent a fax to Professor Goldman, at your behest,
outlining [B's] clinical condition. I understand from Professor Goldman that
his opinion was subsequently sent to Dr Pinkerton and Dr Mellor at the Marsden
and to Dr Broadbent at Addenbrooke's. I have had the benefit of seeing that
correspondence and of noting Professor Goldman's views. He has subsequently
confirmed to me that the line of treatment that he indicated might be a
possibility for [B] was at variance with majority opinion and would be properly
categorised as experimental rather than standard therapy.'
The next paragraph is a reference to the
policy of the Marsden not to perform second bone-marrow transplants. Dr Zimmern
continued:
'At present no formal request for
funding has yet been made to the [authority] from any hospital, but I should
like to emphasise that any decision on this issue will be taken in the light of
all the clinical advice available to it in the context of [Department of
Health] guidance on the funding of unproven or experimental treatments, at all
times with [B's] best interest in mind. At this stage, I have to say that on
the evidence provided to us it is unlikely that we will authorise further
intensive chemotherapy for B but will always keep under review the nature of
the clinical advice that we receive.'
Having received the advice which I have
described from Professor Goldman, B's father then communicated, as was
proposed, with Dr Gravett. Dr Gravett wrote a long letter dated 23 February
expressing the view that, so far as the chemotherapy was concerned, the chances
of obtaining a complete remission in the circumstances were, in his judgment,
10 to 20%. He acknowledged that it would be impossible to repeat the
irradiation treatment again and indicated that the initial chemotherapy might
cost about �15,000 and, if the bone marrow
transplant stage was reached, a further �60,000.
In para 5 he referred to a fax which he had received from Professor Goldman and
expressed the view that if the family and the patient agreed that the treatment
which was proposed had a worthwhile chance of success he was willing to give
it. In the result, the authority, the respondents, through Dr Zimmern,
maintained their refusal to fund further chemotherapy.
In a letter of 27 February 1995 Dr
Zimmern has made the authority's position clear. He wrote to Dr Gravett:
'You have been extremely frank within
your letter in your assessment of the prognosis of the treatment which you
propose to offer and have confirmed that the treatment is of an experimental
nature. You have also [1995] 2 All ER 129 at 134 made it clear to me that
prognosis in the case of secondary AML [acute myeloid leukaemia] is worse than
that of the primary variety. You confirmed that your own Unit at the London
Clinic would not be able to take children of [B's] age and that you propose to carry
out the treatment at the Portland Clinic. You were also able to tell me that
you had discussed the case with [B's] paediatrician, Simon Mellor, and was
conversant with his opinion that [B] should not undergo a second BMT
[bone-marrow transplant]. Given your assessment, together with the advice that
I have received from [B's] medical advisers at both Addenbrooke's and the
Marsden, and in view of [Department of Health] guidance on the funding of
treatment not of a proven nature, I regret that my [authority] is unwilling to
fund this treatment.'
It was the contents of that letter,
which were communicated to B's father, which prompted the present application
for judicial review.
Before the learned judge and before us
there are several affidavits sworn by B's father. They exhibit a certain amount
of learned medical material, the opinions of the American doctors and a certain
amount of the correspondence from the English doctors who were willing, in
principle, to undertake this treatment. On the authority's side, there were
three sworn affidavits. The first of these is sworn by Dr Broadbent, the
physician who has had the responsibility for treating B since her illness was
first diagnosed. She describes her state of mind in para 3 of her affidavit:
'I have considered very carefully
whether a second allogeneic transplant operation would be in [B's] best
interests. I have considered the prospects of success and the suffering which
[B] would undergo as a result of such treatment. First [B] would have to
undergo a course of intensive chemotherapy with the hope of achieving a
complete remission. Such chemotherapy would in itself cause considerable
suffering. Only if complete remission could be achieved could a second
allogeneic transplant be considered. In fact a complete remission is unlikely
to be achieved. Further, the prospects of a second transplant being successful
are only in the region of 10 per cent. I took the view that it would not be
right to subject [B] to all this suffering and trauma when the prospects for
success were so slight.'
In para 4 she describes:
'�
any further definitive treatment by way of intensive chemotherapy or a second
transplant as being treatment of an experimental nature rather than for the
genuine therapeutic needs of [B].'
There is an affidavit sworn by Dr
Pinkerton of the Royal Marsden. He also expresses the opinion that a further
course of intensive chemotherapy with a view to a second possible transplant
operation would not be appropriate. He expresses the judgment that the chances
of a successful outcome would be slight, only in the region of 10%. He believed
that a course of palliative therapy would be in the best interests of B and
said:
'This would enable her to enjoy several
weeks or months of normal life prior to progression. A further course of
intensive chemotherapy and a second transplant would mean several uncomfortable
and distressing [1995] 2 All ER 129 at 135 weeks or months in hospital which in
all probability [B] would not survive.'
He concluded at (para 4):
'This is a very sad case and I fully
understand [the father's] endeavours to do everything possible for the sake of
his daughter. However, I remain of the view that it would not be in [B's] best
interest to subject her to a distressing course of treatment which is most
unlikely to be successful and carries a high risk of early morbidity.'
Finally, an affidavit was sworn by Dr
Zimmern. He refers to the opinions which he had obtained from Dr Broadbent, Dr
Mellor and Dr Pinkerton. He also referred to the American opinions which had
been expressed, to his discussions with Professor Goldman and his exchanges
with Dr Gravett. He summarised his conclusions in these paragraphs which are
sufficiently important to justify quotation:
'First and foremost I had to consider whether
the proposed course of treatment was clinically appropriate for [B]. I also had
to consider whether it would be an effective use of the [authority's] limited
resources, bearing in mind the present and future needs of other patients. The
opinions of Dr Broadbent, Dr Pinkerton, Professor Goldman and Dr Gravett were
broadly similar as to the prospect of a successful outcome. I also noted that
Professor Goldman had agreed that the proposed treatment could and would be
described as experimental. In other words, he agreed with Dr Broadbent, Dr
Pinkerton and Dr Mellor that the treatment could not be justified purely on
therapeutic grounds and that the fundamental justification would be
experimentation. I attached great weight to the clinical judgment of Dr Broadbent
who had been treating [B] ever since her first referral in September 1990 at
the age of 5 years. I also attached great weight to the clinical judgment of Dr
Pinkerton who had carried out the first bone marrow transplant operation.
Having considered all the medical opinions put before me I decided to accept
the clinical judgment of Drs Broadbent, Pinkerton and Mellor that a further
course of intensive chemotherapy with a view to a second transplant operation
was not in the best interests of [B]. I have also been influenced in my
decision by the consistent advice and directions of the Department of Health
with regard to the funding of treatments which have not been proven to be of
benefit. The ethical use of resources demands that new and expensive treatments
are evaluated before they are transferred to the NHS for service funding. The
doctors to whom I spoke were consistent in their advice that the proposed
treatment was neither standard nor had been formally evaluated. I also
considered that the substantial expenditure on treatment with such small
prospect of success would not be an effective use of resources. The amount of
funds available for health care are not limitless. The [authority] has a
responsibility to ensure that sufficient funds are available from their limited
resources for the provision of treatment for other patients which is likely to
be effective.'
In the course of his judgment quashing
the decision of the authority, the learned judge made four criticisms of the
manner in which the authority had reached its decision. Before I turn to those,
however, it is important that I should state very clearly, as the judge did,
that this is a case involving the life of [1995] 2 All ER 129 at 136 a young
patient and that that is a fact which must dominate all consideration of all
aspects of the case. Our society is one in which a very high value is put on
human life. No decision affecting human life is one that can be regarded with
other than the greatest seriousness.
The second general comment which should
be made is that the courts are not, contrary to what is sometimes believed,
arbiters as to the merits of cases of this kind. Were we to express opinions as
to the likelihood of the effectiveness of medical treatment, or as to the
merits of medical judgment, then we should be straying far from the sphere
which under our constitution is accorded to us. We have one function only,
which is to rule upon the lawfulness of decisions. That is a function to which
we should strictly confine ourselves.
The four criticisms made by the learned
judge of the authority's decision were these. First, he took the view that Dr
Zimmern as the decision-maker had wrongly failed to have regard to the wishes
of the patient, as expressed on behalf of the patient by her family, and in
particular by her father. Our attention was directed to the affidavits that I
have mentioned. The point was made that nowhere does one see an express
statement that among the factors that led Dr Zimmern to his decision was a
consideration of the wishes of the family. In that situation, the learned judge
held that the authority had failed to take a vitally important factor into
consideration and that the decision was accordingly flawed.
I feel bound for my part to differ from
the judge. It seems to me that the learned judge's criticism entirely fails to
recognise the realities of this situation. When the case was first presented to
the authority, it was presented on behalf of the patient, B, as a case calling
for the co-operation and funding of the authority. At all times Dr Zimmern was
as vividly aware as he could have been of the fact that the family, represented
by B's father, were urgently wishing the authority to undertake this treatment;
by 'undertake' I of course mean provide the funding for it. He was placed under
considerable pressure by the family and, in the first instance, perhaps
unfortunately, made reference to his policy of not corresponding directly with
patients or their relatives about what he called 'extra-contractual referrals',
meaning requests for the purchase of medical services outside the health
authority.
The inescapable fact is, however, that
he was put under perfectly legitimate, but very obvious, pressure by the family
to procure this treatment and he was responding to that pressure. It was
because he was conscious of that pressure that he obviously found the decision
which he had to make such an agonising one and one calling for such careful
consideration. To complain that he did not in terms say that he had regard to
the wishes of the patient as expressed by the family is to shut one's eyes to
the reality of the situation with which he was confronted. It is also worthy of
note, and there is no hint of criticism in this, that the accusation that he
did not take the patient's wishes into account was not made in the grounds
annexed to Form 86A. It was not, therefore, recognised as an accusation calling
for a specific rebuttal.
The second criticism that is made is of
the use of the expression 'experimental' to describe this treatment. The
learned judge took the view, and Mr McIntyre on behalf of B urges, that that is
not a fair or accurate description given the estimates of success which have
been put by reputable practitioners, and given the willingness of Dr Gravett to
accept that there was a worthwhile chance of success. The fact, however, is
that even the first course of treatment [1995] 2 All ER 129 at 137 had a chance
of success of something between 10 and 20 %. It was only if, contrary to the
probabilities, that was totally successful, that it would be possible to embark
on the second phase of the treatment which itself had a similar chance of
success.
The plain fact is that, unlike many
courses of medical treatment, this was not one that had a well-tried track
record of success. It was, on any showing, at the frontier of medical science.
That being so, it does not, in my judgment, carry weight to describe this
decision as flawed because of the use of this expression.
The third criticism that is made by the
judge is of the reference to resources. The learned judge held that Dr
Zimmern's evidence about money consisted only of grave and well-rounded
generalities. The judge acknowledged that the court should not make orders with
consequences for the use of health service funds in ignorance of the knock-on
effect on other patients. He went on to say that 'where the question is whether
the life of a 10-year-old child might be saved by however slim a chance, the
responsible authority � must do more than toll the bell
of tight resources'. The learned judge said: 'They must explain the priorities
that have led them to decline to fund the treatment', and he found they had not
adequately done so here.
I have no doubt that in a perfect world
any treatment which a patient, or a patient's family, sought would be provided
if doctors were willing to give it, no matter how much it cost, particularly
when a life was potentially at stake. It would however, in my view, be shutting
one's eyes to the real world if the court were to proceed on the basis that we
do live in such a world. It is common knowledge that health authorities of all
kinds are constantly pressed to make ends meet. They cannot pay their nurses as
much as they would like; they cannot provide all the treatments they would like;
they cannot purchase all the extremely expensive medical equipment they would
like; they cannot carry out all the research they would like; they cannot build
all the hospitals and specialist units they would like. Difficult and agonising
judgments have to be made as to how a limited budget is best allocated to the
maximum advantage of the maximum number of patients. That is not a judgment
which the court can make. In my judgment, it is not something that a health
authority such as this authority can be fairly criticised for not advancing
before the court.
Mr McIntyre went so far as to say that
if the authority has money in the bank which it has not spent, then they would
be acting in plain breach of their statutory duty if they did not procure this
treatment. I am bound to say that I regard that submission as manifestly
incorrect. Unless the health authority had sufficient money to purchase
everything which in the interests of patients it would wish to do, then that
situation would never ever be reached. I venture to say that no real evidence
is needed to satisfy the court that no health authority is in that position.
I furthermore think, differing I regret
from the judge, that it would be totally unrealistic to require the authority
to come to the court with its accounts and seek to demonstrate that if this
treatment were provided for B then there would be a patient, C, who would have
to go without treatment. No major authority could run its financial affairs in
a way which would permit such a demonstration.
The fourth criticism which the learned
judge made was that the authority had wrongly treated the problem which they
faced as one of spending �75,000
when, in the first instance, the treatment only involved the expenditure of �15,000.
It was therefore a two-stage process, so it was held and submitted to us, and
not a one-stage process as the authority wrongly thought. Again, I [1995] 2 All
ER 129 at 138 regret that I differ from the judge's view. It is of course true
that if the first stage were unsuccessful, then �15,000,
or even less than �15,000, would be the maximum that
the authority would end up spending. It would not, however, be reasonable for
the authority to embark on this expenditure on that basis since, quite plainly,
they would have to continue if, having expended the �15,000,
it proved successful and the call for the second stage of the treatment came.
It was, therefore, an inescapable decision whether they should embark on this
process at all. Having weighed the matter up and taken advice, particularly
bearing in mind the suffering which even embarking on the treatment would
inflict, the authority thought that they should not fund the treatment at all.
I regret that I find it impossible to fault that process of thinking on their
part.
Such is my sympathy with the father and
B herself that I have been tempted, although disagreeing with the judge's
reasoning, to leave the order which he made in being and invite the authority
to reconsider the matter in the light of the judge's conclusions. I have,
however, concluded that that would be a cruel deception since I would be bound
to make clear that, in my judgment, the authority could, on a proper review of
all the relevant material, reach the same decision that they had already
reached and I would feel obliged, expressly, to dissociate myself from the
learned judge's opinion that it would be hard to imagine a proper basis upon
which this treatment, at least its initial stage, could reasonably be withheld.
In my judgment, it would be open to the authority readily to reach that
decision since it is, as I think, the decision they have already reached.
While I have, as I hope is clear, every
possible sympathy with B, I feel bound to regard this as an attempt, wholly
understandable but none the less misguided, to involve the court in a field of
activity where it is not fitted to make any decision favourable to the patient.
SIR STEPHEN BROWN P.
After the most critical, anxious
consideration, I feel bound to say that I am unable to say that the health authority
in this case acted in a way that exceeded its powers or which was unreasonable
in the legal sense. The powers of this court are not such as to enable it to
substitute its own decision in a matter of this kind for that of the authority
which is legally charged with making the decision. It is a desperately sad case
and all those who have heard it, particularly those who have to take some part
in deciding issues concerned with it, must be aware of the gravity and anxiety
which attaches to the making of such a decision. I find myself in agreement
with the decision which Sir Thomas Bingham MR has already given and I therefore
agree that the appeal should be allowed.
SIMON BROWN LJ.
For reasons given by Sir Thomas Bingham
MR and Sir Stephen Brown P, I too grant the appeal.
Appeal allowed.
Carolyn Toulmin Barrister.
Source:
[All England Law Reports]
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