A 22-stone ex-policeman is to make an urgent appeal to the Supreme Court in a last-ditch bid to force a health authority to fund the obesity surgery he says he needs to save his life.
Today grandfather Tom Condliff, of Talke, Staffordshire, whose life expectancy has been severely reduced by weight-linked health problems, lost his Court of Appeal battle for the operation.
His lawyers reacted swiftly, saying they would now apply to take his case to the highest court in the land.
Oliver Wright, solicitor with law firm McCool Patterson Hemsi, said: "Mr Condliff is disappointed with the decision of the court today.
"He has instructed his solicitors to make an urgent application for permission to appeal to the Supreme Court, and he hopes that permission will be granted this week."
North Staffordshire Primary Care Trust (PCT) rejected an application by Mr Condliff, who is aged 62 and stands 6ft 2in, for funding for a laparoscopic gastric bypass surgery.
His lawyers say he is obese due to the drugs he takes for long-term diabetes.
He suffers from 13 illnesses, takes 28 different drugs and uses breathing masks and inhalers.
But the PCT decided last October his body mass index (BMI) of 43 was not high enough to qualify for surgery under its individual funding request (IFR) policy.
Mr Condliff's lawyers say the IFR policy itself is legally flawed and breaches his rights to "private and family life" under Article 8 of the European Convention on Human Rights.
But in April, Judge Waksman QC, sitting at the High Court in London, rejected the human rights argument and refused to quash the PCT's decision.
Today three appeal judges - Lord Justice Maurice Kay, Lady Justice Hallett and Lord Justice Toulson - also backed the PCT.
Lord Justice Toulson said he wished to echo Judge Waksman's "very considerable sympathy" for Mr Condliff.
"His life expectancy has been severely reduced. Anyone in his situation would feel desperate," said the judge.
Mr Condliff's witness statement showed that his condition "has seriously compromised his independence and dignity of life in ways which have an inevitable impact on his relationship with his wife. It is unnecessary to go into more intimate details.
"The sad fact remains that the PCT on proper medical advice does not consider his condition to be exceptional for someone with his diabetes, obesity and co-morbidities.
"As a medical judgment that is not challenged.
"In my judgment the (High Court) judge was right in his reasoning and his conclusion that the adoption of the IFR policy did not contravene the (human rights) convention. I would therefore dismiss the appeal.
Lady Justice Hallett and Lord Justice Maurice Kay both agreed.
The judges refused Mr Condliff permission to take his case to the Supreme Court, but he can still ask the court itself to consider his case on the basis that it raises issues of general public importance.
The court was told that Mr Condliff was morbidly obese and suffered from diabetes and a number of associated illnesses.
Richard Clayton QC, for Mr Condliff, said his health was deteriorating and doctors feared he could have less than a year to live.
He had a "severe needle phobia" and, over a number of years, insulin had not been delivered as effectively as it might have been.
Mr Condliff had developed a "gross appetite" and started to "gorge himself" following a course of insulin.
His weight had increased and his health problems multiplied.
In a recent hearing which led to today's ruling, Mr Clayton said: "He tried all other relevant non-surgical interventions, including dietary and lifestyle and drug interventions, for his gain in weight, but was not successful."
Mr Clayton argued that the PCT had adopted a funding policy which breached Mr Condliff's right under Article 8 of the European Convention on Human Rights to respect for his private and family life.
He said the policy expressly required the PCT to ignore the "adverse effects" on those rights of not funding surgery, and the potential benefits if surgery was carried out.
David Lock QC, for the PCT, said the case concerned difficult decisions about healthcare funding priorities - and health authority bosses were entitled to make such decisions without taking into account non-clinical and social factors.Reuse content