Woman wins Herceptin treatment court appeal

Cancer victim Ann Marie Rogers today won her appeal against a refusal by a local NHS trust to fund her treatment with the drug Herceptin.

The 54-year-old mother of three had likened the stand taken by Swindon Primary Care Trust (PCT) to "a death sentence".

She went to the Court of Appeal last month over a High Court ruling that the PCT's policy of only paying out for "exceptional cases" was not irrational and unlawful.

The former restaurant manager of Haydon Wick, Swindon, has borrowed £5,000 for treatment so far, but says she cannot afford to pay for further courses.

It was agreed that she would continue receiving the drug - said to halve the chances of a recurrence of her HER- form of breast cancer - pending the ruling by the Master of the Rolls Sir Anthony Clarke, Lord Justice Brooke and Lord Justice Buxton.

Mrs Rogers was sitting outside the court waiting for the the decision to be announced.

Her legal team rushed from the court and after being told that she had won, Mrs Rogers burst into tears.

Outside court, Mrs Rogers wept and hugged well-wishers.

She said: "I couldn't have asked for a better verdict, I did this for all women battling this dreadful disease.

"I believe everyone prescribed this treatment by their doctor should be given the same healthcare wherever they live.

"I can now look towards the future and have more confidence that I will win this battle against breast cancer.

"I am extrememly grateful to the judges in the Court of Appeal for this humanitarian judgment."

The PCT was refused permission to appeal to the House of Lords although it can apply direct.

Mrs Rogers added: "I feel like I've taken on the world and beaten it, not just for me but for everyone else."

Teary and with red eyes, she added: "I'm a bit emotional."

Mrs Rogers' solicitor Yogi Amin said: "The judgment means that all women whose doctor has prescribed Herceptin to them for early breast cancer all over the country should have a treatment funded by their health authority.

"Half of the health authorities in England were 'umming and ahing' and giving it to some patients and not to others.

"Hopefully there is going to be uniform approval of Herceptin for those patients whose doctor prescribes it."

Mr Amin said there were 20 women in Ms Rogers' hometown of Swindon who would benefit from the ruling. He estimated there would be hundreds across the country.

The Court of Appeal ruled today that the policy adopted by the PCT in Ms Rogers' case was irrational and "therefore unlawful".

During the recent appeal hearing, David Pannick QC, argued that the PCT's decision was unreasonable, the result of a failure to give proper consideration to relevant factors and a breach of her right to life under the Human Rights Act.

"We say that where you have, as you do here, undisputed clinical need, the absence of any alternative treatment offering as good - far less better - prospects for her, her clinician prescribing the drug and no suggestion by the PCT that cost is a factor to be weighed in the balance, it is arbitrary in the extreme then to say to the patient 'you can't have this drug'."

Philip Havers QC, for the PCT, said that its approach was a considered one, taken after receiving the advice of the Swindon Clinical Advisory Forum, the Avon, Somerset and Wiltshire Cancer Services, and the local strategic health authority.

Its approach was one shared by many other trusts.

Herceptin had not yet been licensed or appraised by the National Institute of Clinical Excellence for its efficacy and safety in early breast cancer treatment.

Mr Havers said that the Secretary of State had deliberately not stated that Herceptin should be routinely provided or funded but had instead left it to individual trusts to determine.

If she had considered that Herceptin should be routinely provided or funded for the treatment of early stage breast cancer, then she would "surely" have said so.

He added that the PCT had followed the minister's guidance and its policy was wholly consistent with it.

The Court of Appeal ruled unanimously today that "the Primary Care Trust's policy with respect to Herceptin was irrational and so unlawful" .

It ordered that the PCT's decision in Ms Rogers's case be quashed.

Sir Anthony Clarke said: "Although we will hear further submissions on the point, it is our present view that we cannot and should not order the PCT to fund the treatment.

"As we see it, it is now a matter for the PCT to reconsider its policy and to formulate a lawful policy upon which to base decisions in particular cases, including that of the appellant, in the future."

Jan Stubbings, chief executive of Swindon Primary Care Trust, responded to

today's ruling.

At a press conference at the PCT's base, she said in a statement: "The Appeal Court has now delivered (its) judgment and once again we welcome the clarity given by the court on the use of Herceptin.

"Although the judgment said generally our policy on funding is lawful, we accept that when considering this case and exceptional circumstances we should have taken costs into account to make our decision more rational.

"Following this new judgment we will now revisit our policy taking into consideration the points made by the court.

"In the meantime, it has been agreed that we will continue to provide Herceptin for Mrs Rogers.

"Although we believe that in this complex case no-one has won or lost, the PCT is required to pay for reasonable legal costs on behalf of Mrs Rogers.

"The PCT will continue to treat all patients now and in the future with care and consideration. The health of all our residents in Swindon borough and Shrivenham is of the utmost importance and we are committed to helping improve their health and addressing health needs within the funding allocated to us.

"We look forward to decisions from both the EMEA (European Medicines Agency) and NICE (National Institute of Clinical Excellence) regarding the licensing and future use of Herceptin and we wish Mrs Rogers well in her treatment."