10-year-old child might be saved, the
authority must do more than toll the bell
- Mr Justice Laws in the High Court
`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
- The Appeal Court
A father yesterday lost his fight for NHS treatment for his 10-year- old daughter, who is dying of an acute form of leukaemia.
In a day of frantic court-room drama, the father was told at 11am that the High Court had ruled in his favour. Seven hours later the judgment was overturned by the Court of Appeal. Last night, the man was considering offers from a queue of national newspapers to pay for the girl's treatment in return for rights to the story.
The landmark Appeal Court decision has, in effect, sanctioned rationing in the health service. The Cambridge Health Authority argued the £75,000 could be better spent on other patients since further treatment had a low chance of success and could even kill the child, idenitified in court only as "B".
As the father was led away from the Appeal Court looking dazed and close to tears, the family's lawyer, Michael Sinclair, said an appeal to the House of Lords would be considered.
The family was, he said, also looking at the newspaper offers. "Treatment is available for the girl, I understand, on Monday . . . so it is hoped that if the commission [health authority] still decides not to fund the treatment, the family may have it paid by other means."
The father, who cannot be named for legal reasons, had been told in January that his daughter had six to eight weeks to live. The Cambridgeshire family wanted further treatment at a hospital in London.
The Appeal Court ruling by three of the country's most senior judges said Cambridge Health Authority had acted rationally and fairly in denying the sick girl treatment.
It ruled it was not for courts to interfere in such circumstances with the way health authorities made medical judgements on funding.
Sir Thomas Bingham, Master of the Rolls, sitting with Sir Stephen Brown, president of the Family Division, and Lord Justice Simon Brown, said: "Such is my sympathy with the father and with 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 would be a cruel deception."
Mr Justice Laws, who in the High Court ruled the authority had acted unlawfully, "entirely failed to recognise the reality of the situation", Sir Thomas said.
He also appealed to the media to report the case so that B's identity would not be revealed - and in such a way that, were she to read a newspaper or see the television, she would not be able to identify herself and realise how ill she was.
The girl's family were last night considering at least four offers to pay for the £75,000 made up of £15,000 for chemotherapy and £60,000 for a possible bone marrow transplant.
The family's lawyer said he was not aware of the number or size of the offers, or their source, although it is understood that at least four national daily and Sunday newspapers were involved.
Many health leaders said the case should never have come to court. Roy Lilley, the chairman of the Federation of NHS Trusts, said he was appalled that a purchasing authority had made such decision. "I could look a life- long smoker in the eye and say don't expect me to find you treatment. But to do this to a family with a child in treatment is bordering on criminal."
The British Medical Association said the case of B raised fundamental issues of how health care resources were rationed in the NHS. "Doctors have a duty to society to ensure that health care expenditure is based upon medical knowledge and the clinical judgement that flows from that. But it is unacceptable to suggest that a doctor can be forced to offer a treatment which he or she thinks is medically inappropriate because a patient demands it."
Dr Vivienne Nathanson, BMA head of health policy, said she would be very concerned if the child's opinion had not also been taken into account. "Individual doctors and individual patients and their families must make informed decisions based on the information available," she said.
Philip Hunt, director of the National Association of Health Authorities and Trusts, welcomed the Appeal Court ruling. "If the original judgment had stood, it would have been impossible for health authorities to make sensible decisions."
Virginia Bottomley Secretary of State for Health, said decisions to treat must be justified by likely benefits. "Nobody for a moment is suggesting it is a decision based on money alone... decisions are made in the health service by clinicians on the basis on treatment benefits. In a modern, complex NHS, every clinical decision takes place within circumstances of financial resources."
Rationing debate, page 3
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