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BMJ 2005; 331: 796 [Full text]
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[Read Rapid Response] Somerset PCT’s decision to fund Herceptin for breast cancer patient
Daphne I Austin   (9 October 2005)

Somerset PCT’s decision to fund Herceptin for breast cancer patient 9 October 2005
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Daphne I Austin,
Consultant in Public Health
West Midlands Specialised Services Agency, 213 Hagley Road, Birmingham, B16 9RG

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Re: Somerset PCT’s decision to fund Herceptin for breast cancer patient

Editor,

Although I have limited knowledge of the case, the possibility that the threat of legal action might have persuaded yet another PCT to overturn its own decision not to fund a treatment is disappointing but not surprising.

I have seen many instances, over the years, where funding decisions have been reversed at the last minute. In many cases it has been the prohibitive cost of going to court which decides the matter. And who can blame those involved? PCTs are painfully aware that local services and the population they serve will bear the burden of going to court. Stepping down is cheaper, it does not put the PCT (and therefore the health economy) at financial risk and does not divert a large amounts of resource away from patient care.

It is also my experience that clinicians, patients and the public see such actions as evidence that the law supports the case for funding. Such assumptions are ungrounded.

It is the role of the courts to help clarify the parameters within which public decision-makers operate. It is therefore in the interest of both Society and the NHS that test cases are put before the courts. However, unlike local authorities the NHS is deeply court averse. As a result the case law relating to resource allocation is scant and poor. This situation serves no-one.

The courts can only make a judgement on the cases and arguments put before them. Unfortunately many principles remain untested.

Regardless of the specifics of the Somerset case, it is time that the NHS developed a more strategic approach by being prepared to test important principles in the courts. However PCTs will only be encouraged to do so if the financial risks can be shared – preferentially nationally. This seems reasonable as the whole NHS will benefit from a more robust and extensive case law around priority setting.

Competing interests: None declared