In a landmark case with implications for thousands of women, a mother of three with an aggressive form of breast cancer has been told that she does not have the right to be prescribed the highly effective drug Herceptin on the NHS.
A High Court judge ruled yesterday that a local primary care trust (PCT) acted lawfully when it refused to fund the £21,000-a-year treatment for Ann Marie Rogers, despite clear evidence that it could save lives.
The ruling will dismay many more women with breast cancer who have been refused access to Herceptin by their PCTs. Campaigners claim trusts are denying patients Herceptin on the grounds of cost, although it can halve the risk of the disease returning.
Mrs Rogers, 54, said she was "devastated and angry" and intended to appeal. She was diagnosed early with an aggressive form of breast cancer in 2004 and, after a mastectomy, chemotherapy and radiotherapy, was judged to be an appropriate candidate for Herceptin.
The drug has been licensed for advanced cancer and is expected to receive approval for treating early stages of the disease this year.
One in five of the 40,000 women who are diagnosed with breast cancer each year could be helped by the drug. But until it receives the new licence and the National Institute for Clinical Excellence (Nice) decides what criteria should be applied when providing it on the NHS, it is up to the discretion of PCTs on who is given access to Herceptin.
Mrs Rogers was told by Swindon PCT that it was only prescribing the drug in "exceptional" cases and that she was not eligible, despite her doctor's prediction that there was a 57 per cent chance of her cancer returning within 10 years.
In the High Court hearing last week, lawyers for Mrs Rogers argued that the PCT was acting unlawfully and in breach of informal guidance from the Health Secretary, Patricia Hewitt, that Herceptin should be made available unless there were safety concerns about its side effects.
But Mr Justice Bean said yesterday: "The court's task is not to say which policy is better, but to decide whether Swindon's policy is arbitrary or irrational and thus unlawful. Mrs Rogers has not shown that Swindon PCT's refusal to fund her treatment with Herceptin is contrary to a direction or guidance from the Secretary of State for Health. Accordingly, despite my sympathy for Mrs Rogers's plight, I must dismiss the claim for judicial review."
The judge ordered that Mrs Rogers should continue to receive Herceptin on the NHS until the end of next month, when the appeal will be heard. Mrs Rogers, a former restaurant manager, initially borrowed £5,000 to fund private Herceptin prescriptions, but cannot afford to pay for any more. She told the court at an earlier hearing that denying her the drug was tantamount to a death sentence.
After yesterday's ruling she was too upset to talk, but her solicitor, Yogi Amin, said: "Ann Marie is devastated at the outcome of this judicial review, but is determined to take her fight for this drug to the Court of Appeal."
Jan Stubbings, chief executive of Swindon PCT, said: "We considered her case within our own procedures, within the equitable framework we use ... and we have had confirmed by the judge that we followed the guidelines laid down by the Secretary of State."