Bariatric surgery and justice in an imperfect worldBMJ 2011; 343 doi: https://doi.org/10.1136/bmj.d4944 (Published 02 August 2011) Cite this as: BMJ 2011;343:d4944
All rapid responses
After all those legal arguments and expense, success has come to Mr Condliff at last. The PCT is quoted as saying ,"the request and the new supporting medical evidence was thoroughly examined by our clinically led panel and Mr Condliff's clinical circumstances were found to be exceptional as outlined in our policy".It would be interesting to know to what extent Mr Condliff's "clinical circumstances" had changed (to be considered exceptional) since the appeal court's judgment on 27th July.
Competing interests: Have responded to this topic earlier
The Court of Appeal concluded,"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 now challenged" .
If such multiple morbidities,lack of response to non-surgical interventions, and "severley reduced" life expectancy are not sufficient enough to satisfy the exceptionality requirement,then it would have been possible to launch a legal argument based on unreasonablesness and disproportionality of PCT's relevant policy terms. Such argument may well have swayed the Court in a similar manner to the "more dramatic social factors" which Sokol has suggested . Although,I note the original ground that "PCT had unlawfully failed to apply its IFR policy on the facts of the case"  was not pursued before the Court of Appeal, I am not sure whether such ground included the 'reasonableness and proportionality' issues which I have suggested.
Bariatric surgery and justice in an imperfect world.
Daniel K Sokol
BMJ 2011 343:d4944; doi:10.1136/bmj.d4944
Competing interests: No competing interests
My thanks to Sokol for the explanation of the case and judgement. It
seems the patient may have taken the wrong approach to his case. My
instinct would have been to use the rights bestowed upon all residents by
the NHS constitution (1), the first two:
1. The NHS provides a comprehensive service, available to all
2. Access to NHS services is based on clinical need
The argument that the PCT has to balance the books seems irrelevant,
unless the PCT can demonstrate that provision this treatment to this
patient is solely responsible for breaching the budget obligation.
Even if the PCT could demonstrate this, the question would be which
legal right or obligation would trump the other and it would seem much
harder to explain why a patient had died of a treatable condition than why
the budget was exceeded by a fraction of a percentage to save a life.
Although consideration should be given to the consequences of either
action it is unlikely breaching a budget commitment would lead to loss of
life for the PCT staff: "If a PCT overspends, it will result in a
qualification of the regularity opinion." (2)
(1) Department of Health. The NHS constitution. 8 March 2010.
(2) Audit commission. KLOE guidance. http://www.audit-
Competing interests: An NHS patient