High Court quashes decision on individual NHS…

The High Court has quashed a decision of the Welsh Health Specialised Services Committee which had refused funding for a controversial cancer treatment for a patient.

In R (Wallpott) v Welsh Health Specialised Services Committee & Anor (Rev1) [2021] EWHC 3291 (Admin), the High Court considered a challenge to a decision made by an Individual Patient Funding Request (“IPFR”) panel. IPFR decisions fall to be taken by a panel where a general commissioning policy has decided that the relevant NHS body will not routinely fund a particular treatment. In this case, the treatment in question, cytoreductive surgery with hyperthermic intraperitoneal chemotherapy ("CRS with HIPEC"), was not funded for NHS patients generally in Wales because an expert committee had decided there was insufficient evidence of clinical and cost effectiveness to support its routine use for most categories of cancer patients. This is a treatment that is funded for relevant cancer patients in England, albeit NICE has imposed restrictions on how it is to be provided.

The Court quashed the panel’s decision for two primary reasons. First, under the particular wording of the relevant policy, the Court decided (perhaps surprisingly) that the panel had identified the wrong comparator group when deciding whether the Claimant patient was significantly different to other patients. In R (Condliff) v North Staffordshire Primary Care NHS Trust [2011] EWCA Civ 910, Toulson LJ had said that the question to be determined by the IPFRs was whether the patient was exceptional. He approved an NHS Confederation paper which stated:

"Exceptionality is essentially an equity issue that is best expressed by the question: 'On what grounds can the PCT justify funding this patient when others from the same group are not being funded?'"

That case suggests that the comparator group for an IPFR decision are other patients who are affected by the relevant NHS commissioning policy and who are also denied the relevant treatment under that policy. By contrast, the Judge, Steyn J, decided that the wording of the relevant policy in this case defined the group as all patients with the same medical condition and at the same stage of development of that condition, including those whose medical condition meant that they were not clinically suitable for the relevant treatment. Thus a patient could claim to be significantly different to the group by saying the treatment was still relevant for the patient when it was not relevant for others. That, it can be strongly argued, misses the whole point of IPFR policies, even if this is what the wording might have suggested in this particular case. NHS bodies are thus advised to check the wording of their IPFR (or IFR) policies to check that the comparator group is properly identified to ensure they will not have the same problem.

The key words relied upon by the Judge were that the comparator should be “Does this presentation mean that the patient will derive a greater clinical benefit from the treatment than other patients with the same condition at the same stage?” The Judge held that this wording meant the comparator group included persons who had the same medical condition, even if they would not be able to tolerate the relevant treatment. Those words appear in a number of IFR policies and thus attention should be paid to the context of the relevant policy to ensure the comparator group is clearly identified.

There is a clear advantage to identifying any such issue at an early stage given the likely period of delay between a successful challenge and the public body completing the process to change the wording of the policy, during which time the Court’s interpretation of the existing policy reigns supreme.

Secondly, the Judge decided that the panel had given insufficient reasons for the decision, in part because the panel’s reasoning had not engaged in detail with each of the grounds relied on by the referring clinician. The level of reasoning to be given by the panel was set by the Court at a very high level indeed, and arguably went beyond the guidance given in leading cases on reasons. Such a high level of detail may be thought impractical, but was perhaps justified by the particular wording of the policy. That said, such a stringent approach may not survive later challenges. However, the case is a warning to NHS bodies to look very carefully at the reasoning provided in the IPFR decision letters. The decision letter (possibly including the notes of the meeting if they are relied upon) needs to consider and respond to each of the grounds relied upon by the referring clinician to support the case. The decision letter not only needs to explain what decision was reached but also needs to explain carefully what evidence was relied upon by the panel in reaching that decision and what assessment the panel made of the case advanced by the referring clinician.

Given the clinical urgency of the patient’s condition, this case was expedited through the court system, which left little time for the IPFR panel to reconsider its decision. However, in other cases, panels should bear in mind that, if there is a challenge to the lawfulness of a decision in a case where the reasons might be subject to challenge, it is always possible for panels to agree to reconsider the case and provide further reasons (coming to a similar or different decision) rather than relying on the originally formulated reasons.

David Lock QC and Joel Semakula acted for the Welsh Health Specialised Services Committee in this case.

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